11-1953
Siddiqui v. Holder
BIA
A072 184 770
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 29th day of May, two thousand thirteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 REENA RAGGI,
9 RAYMOND J. LOHIER,
10 Circuit Judges.
11 _____________________________________
12
13 MOHAMMAD SIDDIQUI,
14 Petitioner,
15
16 v. 11-1953
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Usman B. Ahmad, Long Island City,
24 New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Thomas B.
28 Fatouros, Senior Litigation Counsel;
29 Janette L. Allen, Trial Attorney,
30 Office of Immigration Litigation,
31 United 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 Mohammad Siddiqui, a native and citizen of
6 Pakistan, seeks review of an April 27, 2011, decision of the
7 BIA denying his motion to reopen his removal proceedings.
8 In re Mohammad Siddiqui, No. A072 184 770 (B.I.A. Apr. 27,
9 2011). We assume the parties’ familiarity with the
10 underlying facts and procedural history in this 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 seeking to reopen proceedings is
14 required to file a motion to reopen no later than 90 days
15 after the date on which the final administrative decision
16 was rendered. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
17 § 1003.2(c)(2). There is no dispute that Siddiqui’s motion
18 to reopen, filed more than seven years after his final order
19 of removal, was untimely.
20 Siddiqui contends, however, that the time limitation
21 should be tolled because his former counsel failed to pursue
22 his petition for review in this Court in 2002, which
23 constituted ineffective assistance. The time limitation for
2
1 a motion to reopen may be tolled due to ineffective
2 assistance of counsel, provided that the movant: (1) alleges
3 facts sufficient to show that competent counsel would have
4 acted otherwise and that he was prejudiced by the
5 ineffective assistance of counsel; and (2) establishes that
6 he exercised due diligence in pursuing his claim. See
7 Rashid v. Mukasey, 533 F.3d 127, 131 (2d Cir. 2008).
8 The BIA did not abuse its discretion in declining
9 equitably to toll the limitations period because Siddiqui
10 failed to demonstrate that he was prejudiced by his former
11 counsel’s actions, as the agency did not err in determining
12 that he was an arriving alien and thus ineligible to apply
13 for adjustment of status before the BIA or the immigration
14 judge (“IJ”). See Rabiu v. INS, 41 F.3d 879, 882-83 (2d
15 Cir. 1994); see also Brito v. Mukasey, 521 F.3d 160, 166 (2d
16 Cir. 2008) (noting that both before and after 2006
17 regulatory changes, IJs lacked jurisdiction over adjustment
18 of status applications for arriving aliens placed in removal
19 proceedings). Furthermore, the Department of Homeland
20 Security (“DHS”) currently has jurisdiction to adjudicate
21 adjustment of status applications for arriving aliens with
22 unexecuted final orders of removal and to grant stays of
3
1 removal while such applications are pending. See Matter of
2 Yauri, 25 I. & N. Dec. 103, 107-09 (B.I.A. 2009).
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
4