09-4836-ag
Manansang v. Holder
BIA
A077 562 706
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 30 th day of July, two thousand ten.
5
6 PRESENT:
7 DEBRA ANN LIVINGSTON,
8 GERARD E. LYNCH,
9 DENNY CHIN,
10 Circuit Judges.
11 ______________________________________
12
13 JULIA MANANSANG,
14 Petitioner,
15
16 09-4836-ag
17 v. NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22
23 ______________________________________
24
25 FOR PETITIONER: Gary J. Yerman, New York, New York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General, Civil Division; Anthony P.
29 Nicastro, Senior Litigation Counsel;
30 Andrew N. O’Malley, Trial Attorney,
31 Office of Immigration Litigation,
32 Civil Division, United States
33 Department of Justice, Washington,
34 D.C.
35
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, Julia Manansang, a native and citizen of
6 Indonesia, seeks review of an October 30, 2009, order of the
7 BIA denying her motion to reopen. In re Julia Manansang,
8 No. A077 562 706 (B.I.A. Oct. 30, 2009). We assume the
9 parties’ familiarity with the underlying facts and
10 procedural history of the 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 may only file one motion to reopen and
14 must do so within 90 days of the agency’s final
15 administrative decision. 8 C.F.R. § 1003.2(c)(2).
16 Manansang’s third motion to reopen, filed nearly six years
17 after the BIA issued a final order, is indisputably
18 untimely. However, the time limitation may be equitably
19 tolled to accommodate claims of ineffective assistance of
20 counsel, so long as the movant has exercised “due diligence”
21 in vindicating his or her rights throughout the period
22 sought to be tolled. See Cekic v. INS, 435 F.3d 167, 171
23 (2d Cir. 2006).
2
1 The BIA did not abuse its discretion in finding that
2 Manansang failed to exercise due diligence in pursuing her
3 ineffective assistance of counsel claim. See Jian Hua Wang
4 v. BIA, 508 F.3d 710, 715 (2d Cir. 2007); Rabiu v. INS, 41
5 F.3d 879, 882 (2d Cir. 1994). Manansang asserts that her
6 former attorney did not discuss her asylum application with
7 her at the time of her hearing, and that she was not aware
8 that she could move to reopen her proceedings based on her
9 attorney’s conduct. However, her ignorance of the law did
10 not prevent her from recognizing that her previous attorney
11 was ineffective during the period she wishes to have tolled.
12 See Rashid v. Mukasey, 533 F.3d 127, 132 n.3 (2d Cir. 2008)
13 (noting that an alien may reasonably become aware of
14 ineffective counsel without consulting an attorney).
15 Moreover, even if we were to accept Manansang’s contention
16 that she initially discovered her former attorney’s
17 ineffective assistance in 2008, she nevertheless failed to
18 demonstrate that she exercised due diligence in pursuing her
19 claim both before and after that discovery. See id. at 132.
20 Thus, it was neither arbitrary nor capricious for the BIA to
21 find that Manansang’s nearly six-year delay in filing her
22 motion to reopen did not exhibit the type of diligence
23 required for equitable tolling. See Ke Zhen Zhao v. U.S.
3
1 Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001); Iavorski
2 v. INS, 232 F.3d 124, 129-34 (2d Cir. 2000) (holding that
3 alien who took no action in the two years after discovering
4 deficient performance failed to exercise due diligence).
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of
7 removal that the Court previously granted in this petition
8 is VACATED, and any pending motion for a stay of removal in
9 this petition is DENIED as moot.
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
12
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14
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