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
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