13-4379
Kavshbaia v. Lynch
BIA
A073 637 401
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 16th day of March, two thousand sixteen.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 PETER W. HALL,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 BESIK KAVSHBAIA,
14 Petitioner,
15
16 v. 13-4379
17 NAC
18 LORETTA E. LYNCH,1 UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONERS: Michael E. Piston, New York, NY.
24
1
Loretta E. Lynch is automatically substituted as
the respondent in this case pursuant to Federal Rule of
Appellate Procedure 43(c)(2).
1 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
2 General; Emily Anne Radford,
3 Assistant Director; Jesse Lloyd
4 Busen, Attorney, Office of
5 Immigration Litigation, United
6 States Department of Justice,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioner Besik Kavshbaia, a native and citizen of
14 Georgia, seeks review of an October 17, 2013 decision of the
15 BIA denying his untimely motion to reopen. In re Besik
16 Kavshbaia, No. A073 637 401 (B.I.A. Oct. 17, 2013). We
17 assume the parties’ familiarity with the underlying facts
18 and procedural history in this case.
19 We review the BIA’s denial of a motion to reopen for
20 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
21 Cir. 2006). An alien seeking to reopen proceedings is
22 required to file a motion to reopen no later than 90 days
23 after the date on which the final administrative decision
24 was rendered, and is permitted to file only one such motion.
25 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).
26 There is no dispute that Kavshbaia’s motion to reopen, filed
27 in June 2013, was untimely because his order of removal
2
1 became final in 2002. See 8 U.S.C. § 1101(a)(47)(B)(i).
2 Petitioner contends, however, that ineffective assistance of
3 counsel excuses his late filing.
4 The applicable time limitation on motions to reopen may
5 be equitably tolled to accommodate claims of ineffective
6 assistance of counsel. Rashid v. Mukasey, 533 F.3d 127, 130
7 (2d Cir. 2008). The movant must demonstrate “due diligence”
8 in pursuing a claim during “both the period of time before
9 the ineffective assistance of counsel was or should have
10 been discovered and the period from that point until the
11 motion to reopen is filed.” Id. at 132. “[T]here is no
12 period of time which . . . is per se unreasonable, and,
13 therefore, disqualifies a petitioner from equitable
14 tolling–or, for that matter, any period of time that is per
15 se reasonable.” Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d
16 Cir. 2007).
17 The BIA did not err in finding that Kavshbaia had not
18 acted with due diligence. Of greatest import here,
19 Kavshbaia waited some amount of time, between seven and
20 nineteen months, to speak with a new lawyer after learning
21 of the BIA’s 2002 decision. There were two additional
22 lengthy periods, one from 2003 until 2008 and a second from
3
1 2008 through 2013, in which Kavshbaia did not seek advice
2 from counsel. Based on the foregoing, the BIA’s finding
3 that Kavshbaia failed to exercise due diligence was not an
4 abuse of discretion.
5 Because the BIA did not err in denying the motion to
6 reopen as untimely, we decline to consider Kavshbaia’s
7 challenge to the BIA’s alternative conclusion that he did
8 not show that he was prejudiced by his prior counsel’s
9 ineffective assistance. See INS v. Bagamasbad, 429 U.S. 24,
10 25 (1976).
11 For the foregoing reasons, the petition for review is
12 DENIED. The pending request for oral argument in this
13 petition is DENIED in accordance with Federal Rule of
14 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
15 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
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