         12-3184
         Bah v. Holder
                                                                                       BIA
                                                                                Schoppert, IJ
                                                                               A095 148 838
                          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 31st day of October, two thousand thirteen.
 5
 6       PRESENT:
 7                ROBERT A. KATZMANN,
 8                     Chief Judge,
 9                DEBRA ANN LIVINGSTON,
10                SUSAN L. CARNEY,
11                     Circuit Judges.
12       _____________________________________
13
14       IBRAHIM BAH,
15                Petitioner,
16
17                       v.                                     12-3184
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:               Theodore Vialet, New York, New York.
25
26       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
27                                     Attorney General; Emily Anne
28                                     Radford, Assistant Director; Jesse
29                                     Lloyd Busen, Trial Attorney, Office
30                                     of Immigration Litigation, 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 Ibrahim Bah, a native and citizen of Sierra

 6   Leone, seeks review of a July 26, 2012 decision of the BIA

 7   affirming an October 7, 2010 decision of an Immigration

 8   Judge (“IJ”) denying his motion to reopen his removal

 9   proceedings.     We assume the parties’ familiarity with the

10   underlying facts and procedural history in this case.

11       We review the BIA’s decision to affirm an IJ’s denial

12   of a motion to reopen for abuse of discretion.     Iavorski v.

13   INS, 232 F.3d 124, 128 (2d Cir. 2000).     An alien seeking to

14   reopen proceedings is required to file a motion to reopen no

15   later than 90 days after the date on which the final

16   administrative decision was rendered.     See 8 U.S.C.

17   § 1229a(c)(7)(C)(i); 8 C.F.R. §§ 1003.2(c)(2),

18   1003.23(b)(1).     There is no dispute that Bah’s motion to

19   reopen, filed more than six years after his final order of

20   removal was rendered, was untimely.

21       Bah contends, however, that the time period for filing

22   his motion to reopen should have been tolled due to his

23   prior counsel’s ineffective assistance.     Under the doctrine

                                     2
 1   of equitable tolling, ineffective assistance of counsel may

 2   toll the time limitation on a motion to reopen if the movant

 3   has exercised “due diligence” in pursuing his claim.    See

 4   Rashid v. Mukasey, 533 F.3d 127, 131 (2d Cir. 2008).    An

 5   alien is required to exercise due diligence both before and

 6   after he has or should have discovered the alleged

 7   ineffective assistance.    See id. at 132; Iavorski, 232 F.3d

 8   at 134.

 9       Bah asserts that he believed that his former counsel

10   had filed an appeal and that he was unaware that the IJ had

11   found his asylum application frivolous.    He did not attempt

12   to contact his former attorney, however, until over a year

13   after the IJ’s decision.    Bah admits that he was never able

14   to reach his former attorney and did not pay her entire fee

15   for filing an appeal.

16       Bah further contends that he ultimately decided not to

17   seek reopening until the agency adjudicated an I-730

18   petition for classification as a derivative asylee filed on

19   his behalf by his wife.    But his motion was filed nearly a

20   year after the denial of that petition.    For these reasons,

21   the BIA’s determination that Bah did not act diligently was

22   reasonable. See Rashid, 533 F.3d at 133 (finding that, even


                                    3
 1   if a petitioner did not “immediately realize . . . that his

 2   counsel had been ineffective, due diligence required that he

 3   follow up with his attorney after the DHS decision, and if

 4   he received no response, to obtain new counsel, seek relief

 5   from the agency on his own, or take other affirmative

 6   action”); Iavorski, 232 F.3d at 134 (finding that petitioner

 7   “failed as a matter of law to exercise the requisite due

 8   diligence during the period of nearly two years he seeks to

 9   toll” where, inter alia, the petitioner was unable to reach

10   his attorney after the removal hearing and had never paid

11   the attorney's fee for filing an appeal).

12       Finally, because Bah did not demonstrate that he acted

13   diligently, his motion was untimely, and it was not

14   necessary for the BIA to consider the merits of his

15   ineffective assistance claims or to review the transcript of

16   the underlying proceedings.   See Cekic v. INS, 435 F.3d 167,

17   170 (2d Cir. 2006) (explaining that “no matter how

18   egregiously ineffective counsel's assistance may have been,

19   an alien will not be entitled to equitable tolling unless he

20   can affirmatively demonstrate that he exercised reasonable

21   due diligence during the time period sought to be tolled”).




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

2   DENIED.

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




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