     15-580
     Kudishev v. Lynch
                                                                                       BIA
                                                                                    Page, IJ
                                                                               A078 521 004
                              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 TO 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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   3rd day of May, two thousand sixteen.
 5
 6   PRESENT:
 7            REENA RAGGI,
 8            RICHARD C. WESLEY,
 9            DEBRA ANN LIVINGSTON,
10                 Circuit Judges.
11   _____________________________________
12
13   GENNADY KUDISHEV, AKA GENNADI
14   KUDISHEV, AKA GENNADY GAVRILETS,
15   AKA GENNADIY ANDREYEVICH
16   GAVRILETS,
17            Petitioner,
18
19                       v.                                          15-580
20                                                                   NAC
21   LORETTA E. LYNCH, UNITED STATES
22   ATTORNEY GENERAL,
23            Respondent.
24   _____________________________________
25
26   FOR PETITIONER:                     Regis Fernandez, Esq., Newark, New
27                                                                Jersey.
28
29   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
1                                  Assistant Attorney General, Mary
2                                  Jane Candaux, Assistant Director,
3                                  Matthew A. Connelly, Trial Attorney,
4                                  Office of Immigration Litigation,
5                                  United States Department of Justice,
6                                  Washington, D.C.
7
8         UPON DUE CONSIDERATION of this petition for review of a

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

10   ORDERED, ADJUDGED, AND DECREED that the petition for review is

11   DENIED.

12        Petitioner Gennady Kudishev, a native of Uzbekistan and

13   citizen of the Russian Federation, seeks review of a February

14   19, 2015 decision of the BIA denying his motion to reopen.       In

15   re Gennady Kudishev, No. A078 521 004 (B.I.A. Feb. 19, 2015).

16   We assume the parties’ familiarity with the underlying facts

17   and procedural history in this case.

18        We review the BIA’s denial of a motion to reopen for abuse

19   of   discretion,   “mindful     that   motions   to   reopen   ‘are

20   disfavored.’”   Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006)

21   (quoting INS v. Doherty, 502 U.S. 314, 322-23 (1992)).    An alien

22   seeking to reopen proceedings may move to reopen no later than

23   90 days after the final administrative decision is rendered.

24   8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).         This

                                      2
1    limitations period may be equitably tolled to accommodate a

2    claim of ineffective assistance of counsel.         See Rashid v.

3    Mukasey, 533 F.3d 127, 130 (2d Cir. 2008).       To decide whether

4    a claim warrants equitable tolling, we engage in a two-step

5    inquiry: first, we determine “whether and when the ineffective

6    assistance ‘[was], or should have been, discovered by a

7    reasonable person in the situation.’     Then, petitioner bears

8    the burden of proving that he has exercised due diligence in

9    the period between discovering the ineffectiveness of his

10   representation and filing the motion to reopen.”     Jian Hua Wang

11   v. BIA, 508 F.3d 710, 715 (2d Cir. 2007) (quoting Iavorski v.

12   INS, 232 F.3d 124, 134 (2d Cir. 2000)).     The petitioner must

13   demonstrate “due diligence” in pursuing a claim “during the

14   entire period he . . . seeks to toll.”   Rashid, 533 F.3d at 132.

15       Kudishev’s petition fails this inquiry.        In denying his

16   motion to reopen, the BIA reasoned that Kudishev knew, or should

17   have known, during his removal proceedings “of the possibility

18   of removal to Russia and that his prior counsel waived an

19   application for asylum.”      App’x 3.      That conclusion is

20   supported by the record.     It    was   clear    throughout   the

21   immigration court proceedings that Russia was a possible
                                    3
1    country of removal.      During a November 2005 hearing, Kudishev

2    declined to designate a country of removal, and the Government

3    designated Uzbekistan with an alternative to the Russian

4    Federation.      It was also clear that Kudishev waived any

5    application for asylum, withholding of removal, and United

6    Nations Convention Against Torture (“CAT”) relief.            At the

7    November 2005 hearing, the immigration judge (“IJ”) warned that

8    if Kudishev failed to submit the application form, then the IJ

9    would assume he waived the application.         At a February 2006

10   hearing, Kudishev’s attorney confirmed that Kudishev waived the

11   application.     And at a December 2008 hearing, the IJ asked

12   Kudishev, “What if you had to go to Russia, the Federation, not

13   Uzbekistan?”     Admin. Record 562.      Having just described his

14   lack of business connections in Uzbekistan, Kudishev responded:

15   “I think Russia is even more dire condition.          It’s even worse

16   than, than over there.    Because in Russia they would, they would

17   just fire people, throw them out to the street with no prospects

18   of getting any work ever.”        Id.   Thus, given the opportunity

19   to voice a fear of physical harm upon returning to Russia,

20   Kudishev   did   not,   thereby    confirming   his   prior   waiver.

21   Finally, the IJ’s December 2010 written decision ordered
                                        4
1    Kudishev removed to Russia and listed his applications for

2    relief, which did not include CAT relief.       On this record, the

3    BIA acted within its discretion in determining that Kudishev

4    did not exercise due diligence between when he should have

5    discovered the purported ineffectiveness (at the latest, in

6    December 2010) and when he filed his motion to reopen (in January

7    2015).    See Jian Hua Wang, 508 F.3d at 715.

8         For the foregoing reasons, the petition for review is

9    DENIED.    As we have completed our review, the stay of removal

10   that the Court previously granted in this petition is VACATED.

11   Any pending request for oral argument in this petition is DENIED

12   in   accordance   with   Federal   Rule   of   Appellate   Procedure

13   34(a)(2), and Second Circuit Local Rule 34.1(b).

14                                  FOR THE COURT:
15                                  Catherine O=Hagan Wolfe, Clerk




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