Siddiqui v. Holder , 522 F. App'x 40 ( 2013 )


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  •          11-1953
    Siddiqui v. Holder
    BIA
    A072 184 770
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    SUMMARY ORDER
    RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
    FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
    APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
    IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
    ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
    MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
    1            At a stated term of the United States Court of Appeals
    2       for the Second Circuit, held at the Thurgood Marshall United
    3       States Courthouse, 40 Foley Square, in the City of New York,
    4       on the 29th day of May, two thousand thirteen.
    5
    6       PRESENT:
    7                GUIDO CALABRESI,
    8                REENA RAGGI,
    9                RAYMOND J. LOHIER,
    10                     Circuit Judges.
    11       _____________________________________
    12
    13       MOHAMMAD SIDDIQUI,
    14                Petitioner,
    15
    16                            v.                                11-1953
    17                                                              NAC
    18       ERIC H. HOLDER, JR., UNITED STATES
    19       ATTORNEY GENERAL,
    20                Respondent.
    21       _______________________________________
    22
    23       FOR PETITIONER:                Usman B. Ahmad, Long Island City,
    24                                      New York.
    25
    26       FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
    27                                      Attorney General; Thomas B.
    28                                      Fatouros, Senior Litigation Counsel;
    29                                      Janette L. Allen, Trial Attorney,
    30                                      Office of Immigration Litigation,
    31                                      United States Department of Justice,
    32                                      Washington, D.C.
    1       UPON DUE CONSIDERATION of this petition for review of a
    2   Board of Immigration Appeals (“BIA”) decision, it is hereby
    3   ORDERED, ADJUDGED, AND DECREED that the petition for review
    4   is DENIED.
    5       Petitioner Mohammad Siddiqui, a native and citizen of
    6   Pakistan, seeks review of an April 27, 2011, decision of the
    7   BIA denying his motion to reopen his removal proceedings.
    8   In re Mohammad Siddiqui, No. A072 184 770 (B.I.A. Apr. 27,
    9   2011).   We assume the parties’ familiarity with the
    10   underlying facts and procedural history in this case.
    11       We review the BIA’s denial of a motion to reopen for
    12   abuse of discretion.     Ali v. Gonzales, 
    448 F.3d 515
    , 517 (2d
    13   Cir. 2006).     An alien seeking to reopen proceedings is
    14   required to file a motion to reopen no later than 90 days
    15   after the date on which the final administrative decision
    16   was rendered.     See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
    17   § 1003.2(c)(2).     There is no dispute that Siddiqui’s motion
    18   to reopen, filed more than seven years after his final order
    19   of removal, was untimely.
    20       Siddiqui contends, however, that the time limitation
    21   should be tolled because his former counsel failed to pursue
    22   his petition for review in this Court in 2002, which
    23   constituted ineffective assistance.     The time limitation for
    2
    1   a motion to reopen may be tolled due to ineffective
    2   assistance of counsel, provided that the movant: (1) alleges
    3   facts sufficient to show that competent counsel would have
    4   acted otherwise and that he was prejudiced by the
    5   ineffective assistance of counsel; and (2) establishes that
    6   he exercised due diligence in pursuing his claim.     See
    7   Rashid v. Mukasey, 
    533 F.3d 127
    , 131 (2d Cir. 2008).
    8       The BIA did not abuse its discretion in declining
    9   equitably to toll the limitations period because Siddiqui
    10   failed to demonstrate that he was prejudiced by his former
    11   counsel’s actions, as the agency did not err in determining
    12   that he was an arriving alien and thus ineligible to apply
    13   for adjustment of status before the BIA or the immigration
    14   judge (“IJ”).   See Rabiu v. INS, 
    41 F.3d 879
    , 882-83 (2d
    15   Cir. 1994); see also Brito v. Mukasey, 
    521 F.3d 160
    , 166 (2d
    16   Cir. 2008) (noting that both before and after 2006
    17   regulatory changes, IJs lacked jurisdiction over adjustment
    18   of status applications for arriving aliens placed in removal
    19   proceedings).   Furthermore, the Department of Homeland
    20   Security (“DHS”) currently has jurisdiction to adjudicate
    21   adjustment of status applications for arriving aliens with
    22   unexecuted final orders of removal and to grant stays of
    3
    1   removal while such applications are pending.    See Matter of
    2   Yauri, 25 I. & N. Dec. 103, 107-09 (B.I.A. 2009).
    3       For the foregoing reasons, the petition for review is
    4   DENIED.   As we have completed our review, any stay of
    5   removal that the Court previously granted in this petition
    6   is VACATED, and any pending motion for a stay of removal in
    7   this petition is DISMISSED as moot.    Any pending request for
    8   oral argument in this petition is DENIED in accordance with
    9   Federal Rule of Appellate Procedure 34(a)(2), and Second
    10   Circuit Local Rule 34.1(b).
    11                                 FOR THE COURT:
    12                                 Catherine O’Hagan Wolfe, Clerk
    4
    

Document Info

Docket Number: 11-1953

Citation Numbers: 522 F. App'x 40

Judges: Calabresi, Guido, Lohier, Raggi, Raymond, Reena

Filed Date: 5/29/2013

Precedential Status: Non-Precedential

Modified Date: 8/6/2023