         13-1106
         Chowdhury v. Holder
                                                                                        BIA
                                                                               A093 332 598




                               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 28th day of October, two thousand fourteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                GERARD E. LYNCH,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       ALAMGIR CHOWDHURY,
14
15                        Petitioner,
16
17                        v.                                    13-1106
18                                                              NAC
19
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22
23                Respondent.
24       _____________________________________
25
26       FOR PETITIONER:                 Salim Sheikh, New York, New York.
27
 1   FOR RESPONDENT:          Stuart F. Delery, Assistant Attorney
 2                            General; Blair T. O’Connor,
 3                            Assistant Director; Edward C.
 4                            Durant, Attorney, Office of
 5                            Immigration Litigation, Civil
 6                            Division, United States Department
 7                            of Justice, 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 Alamgir Chowdhury, a native and citizen of

14   Bangladesh, seeks review of the BIA’s February 28, 2013

15   decision denying his motion to reopen.    In re Alamgir

16   Chowdhury, No. A093 332 598 (B.I.A. Feb. 28, 2013).       We

17   assume the parties’ familiarity with the underlying facts

18   and procedural history in this case.

19       It is undisputed that Chowdhury’s motion to reopen,

20   filed one day beyond the 90-day period for reopening, was

21   untimely.    See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.

22   § 1003.2(c)(2).   This period may be tolled if the alien can

23   demonstrate ineffective assistance of counsel.    Rashid v.

24   Mukasey, 533 F.3d 127, 130 (2d Cir. 2008).    To benefit from

25   equitable tolling, the alien must demonstrate, among other

26


                                    2
 1   requirements, prejudice as a result of counsel’s incompetent

 2   performance.     Id. at 130-31.

 3       The BIA did not abuse its discretion in denying

 4   Chowdhury’s motion to reopen, because Chowdhury’s many

 5   arguments that counsel was incompetent failed to establish

 6   prejudice.     First, Chowdhury argues that counsel was

 7   ineffective for failing to present sufficient evidence of

 8   his continuous physical presence or good moral character.

 9   The BIA correctly ruled that any failure of counsel to

10   develop those factors did not prejudice Chowdhury, because

11   the agency assumed those factors were met and denied his

12   application solely for failure to establish hardship.

13       Second, Chowdhury argues that counsel failed to warn

14   him about cross-examination, causing his testimony to appear

15   “untrustworthy.”     But again he cannot show prejudice,

16   because the IJ did not find that Chowdhury lacked

17   credibility.

18       Third, Chowdhury argues that his former counsel should

19   have elicited testimony regarding the hardship his wife

20   would suffer if she accompanied him to Bangladesh.        As the

21   BIA observed, Chowdhury and his wife testified

22   “unequivocally” at his merits hearing that she would not


                                       3
 1   return to Bangladesh, making any missing evidence of

 2   hardship in Bangladesh irrelevant.

 3       Fourth, he faults his counsel for not further

 4   developing the record regarding his wife’s future hardship

 5   if she remained in the United States after his removal,

 6   particularly her health issues, her troubled former

 7   marriage, and her difficulties with household chores.     But

 8   these issues were in fact developed below, through his

 9   wife’s testimony and affidavit.    Chowdhury himself concedes

10   that the IJ elicited testimony on these issues and he

11   presents no new facts unavailable during the initial

12   hearing.

13              Because the BIA did not abuse its discretion in

14   denying Chowdhury’s motion to reopen as untimely, we need

15   not reach the BIA’s alternative findings.    As to Chowdhury’s

16   new claim that the BIA should have exercised its authority

17   to reopen sua sponte, this Court lacks jurisdiction to

18   review the BIA’s exercise of its sua sponte authority absent

19   alleged errors of law.   Mahmood v. Holder, 570 F.3d 466, 469

20   (2d Cir. 2009).

21

22

23



                                    4
1       For the foregoing reasons, the petition for review is

2   DENIED.

3                              FOR THE COURT:
4                              Catherine O’Hagan Wolfe, Clerk
5
6




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