         11-4815
         Ostrovskaya v. Holder
                                                                                    BIA
                                                                             A079 331 594
                                                                             A079 331 595


                                 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 19th day of December, two thousand thirteen.
 5
 6       PRESENT:
 7                ROBERT D. SACK,
 8                GERARD E. LYNCH,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _______________________________________
12
13       EKATERINA OSTROVSKAYA, ALISA RADJABOVA,
14                Petitioners,
15
16                           v.                                  11-4815
17                                                               NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONERS:                 Ekaterina Ostrovskaya, Alisa
24                                        Radjabova, Pro Se, Spring Valley,
25                                        NY.
26
27       FOR RESPONDENT:                  Stuart F. Delery, Acting Assistant
28                                        Attorney General; David V. Bernal,
 1                           Assistant Director; Stuart S.
 2                           Nickum, Trial Attorney, Office of
 3                           Immigration Litigation, United
 4                           States Department of Justice,
 5                           Washington, D.C.
 6
 7       UPON DUE CONSIDERATION of this petition for review of a

 8   Board of Immigration Appeals (“BIA”) decision, it is hereby

 9   ORDERED, ADJUDGED, AND DECREED that the petition for review

10   is DENIED.

11       Petitioners Ekaterina Ostrovskaya, a native of the

12   former Soviet Union and citizen of Uzbekistan, and her

13   daughter, Alisa Radjabova, a native and citizen of

14   Uzbekistan, seek review of the October 12, 2011 decision of

15   the BIA denying their motion to reopen.    In re Ekaterina

16   Ostrovskaya, Alisa Radjabova, Nos. A079 331 594/595 (B.I.A.

17   Oct. 12, 2011).   We assume the parties’ familiarity with the

18   underlying facts and procedural history of the case.

19       The BIA’s denial of Petitioners’ motion to reopen as

20   untimely was not an abuse of discretion.    See Kaur v. BIA,

21   413 F.3d 232, 233 (2d Cir. 2005) (per curiam).   An alien may

22   file one motion to reopen, generally no later than 90 days

23   after the date on which the final administrative decision

24   was rendered in the proceedings sought to be reopened.   8

25   U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2).

26   There is no dispute that Petitioners’ 2011 motion was

                                   2
 1   untimely, as the final administrative order was issued in

 2   2003.

 3       The agency may equitably toll the time limitation

 4   imposed on motions to reopen if an alien demonstrates

 5   ineffective assistance of counsel.       See Rabiu v. INS, 41

 6   F.3d 879, 882 (2d Cir. 1994).       To prevail on a request for

 7   tolling based on a claim of ineffective assistance, an

 8   applicant must demonstrate that: (1) “competent counsel

 9   would have acted otherwise,” Esposito v. INS, 987 F.2d 108,

10   111 (2d Cir. 1993) (per curiam); (2) she was prejudiced as a

11   result of her counsel’s poor performance, see Rabiu, 41 F.3d

12   at 882; and (3) she exercised due diligence in pursuing her

13   claims during “both the period of time before the

14   ineffective assistance of counsel was or should have been

15   discovered and the period from that point until the motion

16   to reopen was filed” see Rashid v. Mukasey, 533 F.3d 127,

17   131 (2d Cir. 2008).

18       Here, Petitioners generally assert that they

19   established that their prior counsel failed properly to

20   present their case before the immigration judge.       As the BIA

21   reasonably found, however, Petitioners failed to provide any

22   evidence that they substantially complied with the


                                     3
 1   requirements for claiming ineffective assistance of counsel

 2   as set forth in Matter of Lozada, 19 I. & N. Dec. 637

 3   (B.I.A. 1988).    Additionally, given Petitioners’ failure

 4   both to raise this claim for nearly ten years after the

 5   denial of their application for relief, and to provide any

 6   excuse for the delay, the BIA reasonably found that

 7   Petitioners failed to exercise due diligence in pursuing

 8   their claim.     See Jian Hua Wang v. BIA, 508 F.3d 710, 715

 9   (2d Cir. 2007) (per curiam) (citing cases in which the Court

10   held that “a petitioner who waits two years or longer to

11   take steps to reopen a proceeding ha[d] failed to

12   demonstrate due diligence”).     The BIA therefore did not err

13   in finding that the time limitation applicable to their

14   motion to reopen could not be equitably tolled.     See Jian

15   Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 46 (2d Cir.

16   2005) (requiring substantial compliance with Lozada to

17   preserve an ineffective assistance of counsel claim);

18   Rashid, 533 F.3d at 131 (requiring due diligence).

19       Because the timeliness issue was dispositive of the

20   motion to reopen, the BIA was not required to address

21   Petitioners’ prima facie eligibility for relief.     See 8

22   C.F.R. § 1003.2(c)(1)-(2).     To the extent Petitioners argue

23   that they established extraordinary circumstances warranting

                                     4
1    sua sponte reopening and also demonstrated a change in

2    personal circumstances and country conditions, those

3    arguments are unexhausted and therefore we may not consider

4    them.     See 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462

5    F.3d 113, 119 (2d Cir. 2006); Lin Zhong v. U.S. Dep’t of

6    Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).

7        For the foregoing reasons, the petition for review is

8    DENIED.

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk




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