11-2760-ag
Soumalia v. Holder
BIA
A077 547 856
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 29th day of May, two thousand twelve.
PRESENT:
JON O. NEWMAN,
ROBERT A. KATZMANN,
DENNY CHIN,
Circuit Judges.
_______________________________________
SEYNI SOUMALIA,
Petitioner,
v. 11-2760-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Seyni Soumalia, pro se, New York,
New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Luis E. Perez, Senior
Litigation Counsel; Edward C.
Durant, Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.
Seyni Soumalia, a native and citizen of Mauritania,
seeks review of a June 6, 2011, decision of the BIA denying
his motion to reopen. In re Seyni Soumalia, No. A077 547
856 (B.I.A. June 6, 2011). We assume the parties’
familiarity with the underlying facts and procedural history
of this case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. See Jian Hui Shao v. Mukasey, 546 F.3d
138, 168-69 (2d Cir. 2008). An alien must file a motion to
reopen within 90 days of the agency’s final administrative
decision. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
§ 1003.2(c)(2). Soumalia’s motion to reopen was
indisputably untimely because it was filed more than six
years after his order of removal became final. See 8 U.S.C.
§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).
Moreover, the BIA did not err in declining to equitably
toll the time period for filing Soumalia’s motion to reopen
based on his ineffective assistance of counsel claim. In
order to warrant equitable tolling, even assuming that a
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movant demonstrated that prior counsel was ineffective, an
alien is required to demonstrate “due diligence” in pursuing
his claim during “both the period of time 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.” Rashid v. Mukasey, 533 F.3d 127, 131
(2d Cir. 2008); see also Cekic v. INS, 435 F.3d 167, 170 (2d
Cir. 2006). The BIA did not err in finding that Soumalia
failed to demonstrate that he exercised due diligence
because he did not assert before the BIA that he took any
actions to pursue his case from 2007, when he discovered
that his removal proceedings were closed, to 2010, when he
hired an attorney to file his motion to reopen. See Jian
Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007).
We may not consider, or remand for the BIA to consider,
Soumalia’s assertion and supporting evidence that he
exercised due diligence in 2007 by hiring a third attorney
who provided him with ineffective assistance of counsel
because he did not raise this issue or present this evidence
to the BIA. See 8 U.S.C. § 1252(b)(4)(A) (providing that
“the court of appeals shall decide the petition only on the
administrative record on which the order of removal is
based”); see also Xiao Xing Ni v. Gonzales, 494 F.3d 260,
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269-70 (2d Cir. 2007) (holding that any inherent power to
remand “should not” be exercised when “[i] the basis for the
remand is an instruction to consider documentary evidence
that was not in the record before the BIA; and [ii] the
agency regulations set forth procedures to reopen a case
before the BIA for the taking of additional evidence.”); Lin
Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 124 (2d Cir.
2007) (recognizing that, although issue exhaustion is not a
jurisdictional requirement, failure to exhaust specific
issues is mandatory).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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