09-1757-ag
Bah v. Holder
BIA
A 097 847 391
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 21 st day of April, two thousand ten.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 RICHARD C. WESLEY,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 ______________________________________
12
13 MAMADOU ALIOU BAH,
14 Petitioner,
15 09-1757-ag
16 v. NAC
17
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Pro se.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General, Civil Division; Jennifer L.
27 Lightbody, Senior Litigation
28 Counsel; Robbin K. Blaya, Trial
29 Attorney, Office of Immigration
30 Litigation, Civil Division, United
31 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, Mamadou Aliou Bah, a native and citizen of
6 Guinea, seeks review of an April 1, 2009, order of the BIA
7 denying his motion to reopen and reconsider. In re Mamadou
8 Aliou Bah, No. A 097 847 391 (B.I.A. Apr. 1, 2009). We
9 assume the parties’ familiarity with the underlying facts
10 and 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). However,
16 the deadline may be equitably tolled to accommodate claims
17 of ineffective assistance of counsel, so long as the movant
18 has exercised “due diligence” in vindicating his or her
19 rights. See Cekic v. INS, 435 F.3d 167, 171 (2d Cir. 2006).
20 The BIA did not err in finding that Bah failed to
21 exercise due diligence in pursuing his ineffective
22 assistance of counsel claim, an independent basis for
2
1 denying his motion to reopen. See Rabiu v. INS, 41 F.3d 879,
2 882 (2d Cir. 1994); Jian Hua Wang v. BIA, 508 F.3d 710, 715
3 (2d Cir. 2007). As the BIA observed, when Bah filed his
4 second motion to reopen, he was represented by the same
5 attorney who filed his first. Under these circumstances, it
6 was neither arbitrary nor capricious for the BIA to find
7 that Bah’s ninety-two day delay in filing a second motion to
8 reopen did not exhibit the type of diligence required for
9 equitable tolling. See Ke Zhen Zhao v. U.S. Dep’t of
10 Justice, 265 F.3d 83, 93 (2d Cir. 2001). This is
11 particularly true because an alien has only thirty days to
12 file a motion to reconsider alleging legal or factual error
13 in a prior BIA decision. See 8 C.F.R. § 1003.2(b)(2).
14 Therefore, to the extent Bah sought in his second motion to
15 reopen to remedy the deficiencies the BIA had identified in
16 denying his first, the BIA could (and arguably should) have
17 construed his motion as a motion to reconsider. 1 See
18 8 C.F.R. § 1003.2(b)(1); see also Jie Chen v. Gonzales, 436
19 F.3d 76, 78-79 & n.5 (2d Cir. 2006) (holding that the BIA
20 must construe motions as motions to reopen or reconsider
1
Had the BIA done so, the motion would properly have
been denied as untimely. 8 C.F.R. § 1003.2(b)(2). There
are no exceptions to the filing deadline for motions to
reconsider.
3
1 depending not just on their captions but also on their
2 substance).
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
13
4