         12-4805
         Abdoulaye v. Holder
                                                                                       BIA
                                                                                LaForest, IJ
                                                                               A097 528 372
                                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 3rd day of September, two thousand fourteen.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                REENA RAGGI,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       ABDOU ABDOULAYE,
14                Petitioner,
15
16                             v.                               12-4805
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                 Theodore Vialet, New York, New York.
24
25       FOR RESPONDENT:                 Stuart F. Delery, Assistant Attorney
26                                       General; Jennifer L. Lightbody,
27                                       Senior Litigation Counsel; Stephanie
28                                       A. Svoren-Jay, Trial Attorney,
29                                       Office of Immigration Litigation,
30                                       United States Department of Justice,
31                                       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 Abdou Abdoulaye, a native and citizen of

 6   Niger, seeks review of a November 7, 2012 decision of the

 7   BIA affirming a February 7, 2011 decision of Immigration

 8   Judge (“IJ”) Brigitte LaForest, which denied his motion to

 9   reopen his removal proceedings.   In re Abdou Abdoulaye, No.

10   A097 528 372 (B.I.A. Nov. 7, 2012), aff’g No. A097 528 372

11   (Immig. Ct. N.Y. City Feb. 7, 2011).    We assume the parties’

12   familiarity with the underlying facts and procedural history

13   in this case.

14       We review the denial of a motion to reopen for abuse of

15   discretion, remaining mindful of the Supreme Court's

16   admonition that such motions are “disfavored.”    Ali v.

17   Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (quoting INS v.

18   Doherty, 502 U.S. 314, 322-23 (1992).   An alien seeking to

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

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

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

22   § 1229a(c)(7)(C)(i); 8 C.F.R. §§ 1003.2(c)(2),

23   1003.23(b)(1).   There is no dispute that Abdoulaye’s motion

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 1   to reopen, filed more than eight months after the BIA’s

 2   dismissal of his appeal, was untimely.

 3       Abdoulaye contends, however, that the time period for

 4   filing his motion to reopen should have been tolled due to

 5   his prior counsel’s ineffectiveness in not filing a timely

 6   appeal.   The limitations period may be tolled by ineffective

 7   assistance of counsel.   See Iavorski v. INS, 232 F.3d 124,

 8   129-30 (2d Cir. 2000).   To establish ineffective assistance,

 9   a movant must show that “competent counsel would have acted

10   otherwise,” and that “he was prejudiced by his counsel’s

11   performance.”   Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 1994)

12   (citation omitted).   An attorney’s failure to file an appeal

13   causes prejudice where “had the appeal been made, the result

14   [of the proceeding] would have been different.”     Esposito v.

15   INS, 987 F.2d 108, 111 (2d Cir. 1993).

16       We find no abuse of discretion in the BIA’s denial of

17   reopening, as Abdoulaye’s motion to reopen did not identify

18   any arguments he would have raised on appeal.     As he did not

19   state how he would challenge the IJ’s dispositive findings

20   that the asylum application was untimely and that he was

21   incredible, Abdoulaye did not show that, if his former

22   counsel had timely filed an appeal, “the result [of the


                                   3
 1   proceeding] would have been different.”   Id.   Abdoulaye’s

 2   additional contention that former counsel provided

 3   ineffective assistance by filing a deficient notice of

 4   appeal is unexhausted.   See Lin Zhong v. U.S. Dep’t of

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

 6   Abdoulaye faults his former counsel for failing to challenge

 7   the adverse credibility determination in the untimely notice

 8   of appeal, Abdoulaye has not identified any basis for such a

 9   challenge.

10       Because Abdoulaye’s failure to demonstrate prejudice is

11   dispositive, we do not consider his counsel’s performance.

12       For the foregoing reasons, the petition for review is

13   DENIED.

14                            FOR THE COURT:
15                            Catherine O’Hagan Wolfe,
16                            Clerk of Court
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