         11-1953
         Siddiqui v. Holder
                                                                                       BIA
                                                                               A072 184 770
                               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 29th day of May, two thousand thirteen.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                REENA RAGGI,
 9                RAYMOND J. LOHIER,
10                     Circuit Judges.
11       _____________________________________
12
13       MOHAMMAD SIDDIQUI,
14                Petitioner,
15
16                            v.                                11-1953
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                Usman B. Ahmad, Long Island City,
24                                      New York.
25
26       FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
27                                      Attorney General; Thomas B.
28                                      Fatouros, Senior Litigation Counsel;
29                                      Janette L. Allen, Trial Attorney,
30                                      Office of Immigration Litigation,
31                                      United States Department of Justice,
32                                      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 Mohammad Siddiqui, a native and citizen of

 6   Pakistan, seeks review of an April 27, 2011, decision of the

 7   BIA denying his motion to reopen his removal proceedings.

 8   In re Mohammad Siddiqui, No. A072 184 770 (B.I.A. Apr. 27,

 9   2011).   We assume the parties’ familiarity with the

10   underlying facts and procedural history in this case.

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

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

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

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

15   after the date on which the final administrative decision

16   was rendered.     See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.

17   § 1003.2(c)(2).     There is no dispute that Siddiqui’s motion

18   to reopen, filed more than seven years after his final order

19   of removal, was untimely.

20       Siddiqui contends, however, that the time limitation

21   should be tolled because his former counsel failed to pursue

22   his petition for review in this Court in 2002, which

23   constituted ineffective assistance.     The time limitation for

                                     2
 1   a motion to reopen may be tolled due to ineffective

 2   assistance of counsel, provided that the movant: (1) alleges

 3   facts sufficient to show that competent counsel would have

 4   acted otherwise and that he was prejudiced by the

 5   ineffective assistance of counsel; and (2) establishes that

 6   he exercised due diligence in pursuing his claim.     See

 7   Rashid v. Mukasey, 533 F.3d 127, 131 (2d Cir. 2008).

 8       The BIA did not abuse its discretion in declining

 9   equitably to toll the limitations period because Siddiqui

10   failed to demonstrate that he was prejudiced by his former

11   counsel’s actions, as the agency did not err in determining

12   that he was an arriving alien and thus ineligible to apply

13   for adjustment of status before the BIA or the immigration

14   judge (“IJ”).   See Rabiu v. INS, 41 F.3d 879, 882-83 (2d

15   Cir. 1994); see also Brito v. Mukasey, 521 F.3d 160, 166 (2d

16   Cir. 2008) (noting that both before and after 2006

17   regulatory changes, IJs lacked jurisdiction over adjustment

18   of status applications for arriving aliens placed in removal

19   proceedings).   Furthermore, the Department of Homeland

20   Security (“DHS”) currently has jurisdiction to adjudicate

21   adjustment of status applications for arriving aliens with

22   unexecuted final orders of removal and to grant stays of


                                   3
 1   removal while such applications are pending.    See Matter of

 2   Yauri, 25 I. & N. Dec. 103, 107-09 (B.I.A. 2009).

 3       For the foregoing reasons, the petition for review is

 4   DENIED.   As we have completed our review, any stay of

 5   removal that the Court previously granted in this petition

 6   is VACATED, and any pending motion for a stay of removal in

 7   this petition is DISMISSED as moot.    Any pending request for

 8   oral argument in this petition is DENIED in accordance with

 9   Federal Rule of Appellate Procedure 34(a)(2), and Second

10   Circuit Local Rule 34.1(b).

11                                 FOR THE COURT:
12                                 Catherine O’Hagan Wolfe, Clerk




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