10-3683-ag
Bzeih v. Holder
BIA
A079 134 962
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 5th day of April, two thousand twelve.
PRESENT:
ROBERT A. KATZMANN,
BARRINGTON D. PARKER,
REENA RAGGI,
Circuit Judges.
______________________________________
MOHAMAD AHMAD BZEIH,
Petitioner,
10-3683-ag
v. NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Alexandra V. Tseitlin, Law Office of
Alexandra V. Tseitlin, P.C., New
York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; David V. Bernal, Assistant
Director; Lindsay E. Williams,
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Mohamad Ahmad Bzeih, a native and citizen of
Lebanon, seeks review of an August 16, 2010, decision of the
BIA denying his motion to reopen his removal proceedings.
In re Bzeih, No. A079 134 962 (B.I.A. Aug. 16, 2010). He
has also filed a “motion to take judicial notice,”
requesting the Court to take judicial notice of events in
Lebanon. We assume the parties’ familiarity with the
underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
(2d Cir. 2006). Here, the BIA correctly found that the
motion was untimely, as it was filed in February 2010, more
than 90 days after the BIA dismissed his appeal in January
2008. See 8 C.F.R. § 1003.2(c)(2).
Although Bzeih argues that the 90-day period should be
equitably tolled because he acted diligently in pursuing his
ineffective assistance of counsel claim, he did not exhaust
this issue before the BIA. The Court has generally required
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that petitioners raise to the BIA the specific issues they
later raise in this Court. See Foster v. INS, 376 F.3d 75,
78 (2d Cir. 2004). The issue exhaustion requirement is not
jurisdictional, but is an “affirmative defense subject to
waiver.” Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104,
119-20, 124 (2d Cir. 2007). In this case, the Government
has raised Bzeih’s failure to exhaust the issue and we
decline to review for the first time Bzeih’s contention that
he acted with due diligence. See id. at 123
(“Judicially-imposed doctrines of issue exhaustion . . .
will usually mean that issues not raised to the BIA will not
be examined by the reviewing court”).
In any event, Bzeih has failed to demonstrate that he
exercised due diligence. See Rashid v. Mukasey, 533 F.3d
127, 132 (2d Cir. 2008) (finding that a movant seeking
equitable tolling must demonstrate that he acted diligently
both “before the ineffective assistance of counsel was or
should have been discovered and the period from that point
until the motion to reopen is filed.”). Assuming that Bzeih
did not learn of his first counsel’s ineffective assistance
until his petition for review was denied by this Court in
October 2008, Bzeih has not demonstrated that he acted
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diligently from October 2008 through February 2010, when he
moved to reopen.
His contention that, during this period, he was
fulfilling the requirements of Matter of Lozada, 19 I & N
Dec. 637 (BIA 1988), is without merit. In order to comply
with the Lozada requirements, Bzeih was required to submit:
“(1) an affidavit setting forth in detail the agreement with
former counsel concerning what action would be taken and
what counsel did or did not represent in this regard;
(2) proof that the alien notified former counsel of the
allegations of ineffective assistance and allowed counsel an
opportunity to respond; and (3) if a violation of ethical or
legal responsibilities is claimed, a statement as to whether
the alien filed a complaint with any disciplinary authority
regarding counsel’s conduct and, if a complaint was not
filed, an explanation for not doing so.” Twum v. INS, 411
F.3d 54, 59 (2d Cir. 2005).
Bzeih did not complete the affidavit until December
2008, two months after the petition for review was denied,
and he does not explain why he then waited 13 months to move
to reopen. Notably, Bzeih does not indicate when he
notified counsel of the ineffective assistance allegation,
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or when he filed a disciplinary complaint. Moreover,
although he asserts that counsel responded to the
disciplinary complaint in June 2009, he does not explain the
seven-month delay between this response and the filing of
the motion. See Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d
Cir. 2007) (observing that filing a disciplinary complaint
is “the last step necessary to comply with the requirements
set out in” Lozada, and finding that the BIA reasonably
found that petitioner had not acted diligently where the
motion was to reopen was filed five months after he complied
with the Lozada requirements).
Finally, Bzeih’s pending motion is DENIED, as the
events he asks the Court to take judicial notice of are
irrelevant to the issue before the Court, and we will not
remand for the BIA to consider new evidence. See Xiao Xing
Ni v. Gonzales, 494 F.3d 260, 269-70 (2d Cir. 2007)
For the foregoing reasons, the petition for review is
DENIED. It is further ORDERED that Petitioner’s “motion to
take judicial notice” is DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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