    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,


                              4
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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