Abdoulaye v. Holder

12-4805 Abdoulaye v. Holder BIA LaForest, IJ A097 528 372 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 3rd day of September, two thousand fourteen. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 REENA RAGGI, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 ABDOU ABDOULAYE, 14 Petitioner, 15 16 v. 12-4805 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Theodore Vialet, New York, New York. 24 25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney 26 General; Jennifer L. Lightbody, 27 Senior Litigation Counsel; Stephanie 28 A. Svoren-Jay, Trial Attorney, 29 Office of Immigration Litigation, 30 United States Department of Justice, 31 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 Abdou Abdoulaye, a native and citizen of 6 Niger, seeks review of a November 7, 2012 decision of the 7 BIA affirming a February 7, 2011 decision of Immigration 8 Judge (“IJ”) Brigitte LaForest, which denied his motion to 9 reopen his removal proceedings. In re Abdou Abdoulaye, No. 10 A097 528 372 (B.I.A. Nov. 7, 2012), aff’g No. A097 528 372 11 (Immig. Ct. N.Y. City Feb. 7, 2011). We assume the parties’ 12 familiarity with the underlying facts and procedural history 13 in this case. 14 We review the denial of a motion to reopen for abuse of 15 discretion, remaining mindful of the Supreme Court's 16 admonition that such motions are “disfavored.” Ali v. 17 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (quoting INS v. 18 Doherty, 502 U.S. 314, 322-23 (1992). An alien seeking to 19 reopen proceedings is required to file a motion to reopen no 20 later than 90 days after the date on which the final 21 administrative decision was rendered. See 8 U.S.C. 22 § 1229a(c)(7)(C)(i); 8 C.F.R. §§ 1003.2(c)(2), 23 1003.23(b)(1). There is no dispute that Abdoulaye’s motion 2 1 to reopen, filed more than eight months after the BIA’s 2 dismissal of his appeal, was untimely. 3 Abdoulaye contends, however, that the time period for 4 filing his motion to reopen should have been tolled due to 5 his prior counsel’s ineffectiveness in not filing a timely 6 appeal. The limitations period may be tolled by ineffective 7 assistance of counsel. See Iavorski v. INS, 232 F.3d 124, 8 129-30 (2d Cir. 2000). To establish ineffective assistance, 9 a movant must show that “competent counsel would have acted 10 otherwise,” and that “he was prejudiced by his counsel’s 11 performance.” Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 1994) 12 (citation omitted). An attorney’s failure to file an appeal 13 causes prejudice where “had the appeal been made, the result 14 [of the proceeding] would have been different.” Esposito v. 15 INS, 987 F.2d 108, 111 (2d Cir. 1993). 16 We find no abuse of discretion in the BIA’s denial of 17 reopening, as Abdoulaye’s motion to reopen did not identify 18 any arguments he would have raised on appeal. As he did not 19 state how he would challenge the IJ’s dispositive findings 20 that the asylum application was untimely and that he was 21 incredible, Abdoulaye did not show that, if his former 22 counsel had timely filed an appeal, “the result [of the 3 1 proceeding] would have been different.” Id. Abdoulaye’s 2 additional contention that former counsel provided 3 ineffective assistance by filing a deficient notice of 4 appeal is unexhausted. See Lin Zhong v. U.S. Dep’t of 5 Justice, 480 F.3d 104, 119-20 (2d Cir. 2007). Although 6 Abdoulaye faults his former counsel for failing to challenge 7 the adverse credibility determination in the untimely notice 8 of appeal, Abdoulaye has not identified any basis for such a 9 challenge. 10 Because Abdoulaye’s failure to demonstrate prejudice is 11 dispositive, we do not consider his counsel’s performance. 12 For the foregoing reasons, the petition for review is 13 DENIED. 14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, 16 Clerk of Court 17 18 19 20 21 22 23 24 25 26 27 4