         13-4379
         Kavshbaia v. Lynch
                                                                                       BIA
                                                                               A073 637 401
                               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 16th day of March, two thousand sixteen.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                PETER W. HALL,
 9                DEBRA ANN LIVINGSTON,
10                     Circuit Judges.
11       _____________________________________
12
13       BESIK KAVSHBAIA,
14                Petitioner,
15
16                            v.                                13-4379
17                                                              NAC
18       LORETTA E. LYNCH,1 UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONERS:               Michael E. Piston, New York, NY.
24




                      1
                    Loretta E. Lynch is automatically substituted as
             the respondent in this case pursuant to Federal Rule of
             Appellate Procedure 43(c)(2).
 1   FOR RESPONDENT:         Stuart F. Delery, Assistant Attorney
 2                           General; Emily Anne Radford,
 3                           Assistant Director; Jesse Lloyd
 4                           Busen, Attorney, Office of
 5                           Immigration Litigation, United
 6                           States Department of Justice,
 7                           Washington, D.C.
 8
 9       UPON DUE CONSIDERATION of this petition for review of a

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

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

12   is DENIED.

13       Petitioner Besik Kavshbaia, a native and citizen of

14   Georgia, seeks review of an October 17, 2013 decision of the

15   BIA denying his untimely motion to reopen.   In re Besik

16   Kavshbaia, No. A073 637 401 (B.I.A. Oct. 17, 2013).   We

17   assume the parties’ familiarity with the underlying facts

18   and procedural history in this case.

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

20   abuse of discretion.   Ali v. Gonzales, 448 F.3d 515, 517 (2d

21   Cir. 2006).   An alien seeking to reopen proceedings is

22   required to file a motion to reopen no later than 90 days

23   after the date on which the final administrative decision

24   was rendered, and is permitted to file only one such motion.

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

26   There is no dispute that Kavshbaia’s motion to reopen, filed

27   in June 2013, was untimely because his order of removal

                                   2
 1   became final in 2002.    See 8 U.S.C. § 1101(a)(47)(B)(i).

 2   Petitioner contends, however, that ineffective assistance of

 3   counsel excuses his late filing.

 4       The applicable time limitation on motions to reopen may

 5   be equitably tolled to accommodate claims of ineffective

 6   assistance of counsel.    Rashid v. Mukasey, 533 F.3d 127, 130

 7   (2d Cir. 2008).   The movant must demonstrate “due diligence”

 8   in pursuing a claim during “both the period of time before

 9   the ineffective assistance of counsel was or should have

10   been discovered and the period from that point until the

11   motion to reopen is filed.”     Id. at 132.   “[T]here is no

12   period of time which . . . is per se unreasonable, and,

13   therefore, disqualifies a petitioner from equitable

14   tolling–or, for that matter, any period of time that is per

15   se reasonable.”   Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d

16   Cir. 2007).

17       The BIA did not err in finding that Kavshbaia had not

18   acted with due diligence.     Of greatest import here,

19   Kavshbaia waited some amount of time, between seven and

20   nineteen months, to speak with a new lawyer after learning

21   of the BIA’s 2002 decision.     There were two additional

22   lengthy periods, one from 2003 until 2008 and a second from


                                     3
 1   2008 through 2013, in which Kavshbaia did not seek advice

 2   from counsel.    Based on the foregoing, the BIA’s finding

 3   that Kavshbaia failed to exercise due diligence was not an

 4   abuse of discretion.

 5       Because the BIA did not err in denying the motion to

 6   reopen as untimely, we decline to consider Kavshbaia’s

 7   challenge to the BIA’s alternative conclusion that he did

 8   not show that he was prejudiced by his prior counsel’s

 9   ineffective assistance.    See INS v. Bagamasbad, 429 U.S. 24,

10   25 (1976).

11       For the foregoing reasons, the petition for review is

12   DENIED.    The pending request for oral argument in this

13   petition is DENIED in accordance with Federal Rule of

14   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

15   34.1(b).

16                                FOR THE COURT:
17                                Catherine O’Hagan Wolfe, Clerk
18




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