         08-2746-ag
         Hodzic v. Holder
                                                                                       BIA
                                                                               A095 377 065
                                                                               A095 377 066
                                                                               A095 377 067
                             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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 30 th day of April, two thousand ten.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                DEBRA ANN LIVINGSTON,
 9                GERARD E. LYNCH,
10                        Circuit Judges.
11       _____________________________________
12
13       MUSA HODZIC, SAFETA HODZIC, AZRA HODZIC,
14                Petitioners,
15
16                          v.                                  08-2746-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., * UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONERS:              Pro Se.


                  *
               Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), Attorney General Eric H. Holder, Jr., is
         automatically substituted for former Attorney General
         Michael B. Mukasey as the respondent in this case.
1    FOR RESPONDENT:          Tony West, Assistant Attorney
2                             General; Russell J.E. Verby, Senior
3                             Litigation Counsel; Carmel A.
4                             Morgan, Trial Attorney, Office of
5                             Immigration Litigation, Civil
6                             Division, United States Department
7                             of Justice, Washington, D.C.
8
9        UPON DUE CONSIDERATION of this petition for review of a

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

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

12   review is DENIED.

13       Petitioners, natives and citizens of Montenegro, seek

14   review of a May 16, 2008, order of the BIA denying their

15   motion to reopen.   In re Hodzic, Nos. A095 377 065/066/067

16   (B.I.A. May 16, 2008).   We assume the parties’ familiarity

17   with the underlying facts and procedural history of this

18   case.

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

20   abuse of discretion, mindful of the Supreme Court’s

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

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

23   Doherty, 502 U.S. 314, 322-23 (1992)).   We review for

24   substantial evidence the BIA’s evaluation of country

25   conditions evidence submitted with a motion to reopen.     Jian

26   Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).


                                    2
1        A party may file only one motion to reopen removal

2    proceedings, and must do so no later than 90 days after the

3    date on which the final administrative decision was rendered

4    in the proceeding sought to be reopened.     8 C.F.R.

5    § 1003.2(c)(1),(2).    It is beyond dispute that Petitioners’

6    motion to reopen was untimely.     However, the time and number

7    limitations do not apply to a motion to reopen that is

8    “based on changed circumstances arising in the country of

9    nationality or in the country to which deportation has been

10   ordered, if such evidence is material and was not available

11   and could not have been discovered or presented at the

12   previous hearing.”    8 C.F.R. § 1003.2(c)(3)(ii).      The time

13   limit may also be equitably tolled if there is a claim for

14   ineffective assistance of counsel, and the petitioner

15   demonstrates both that counsel’s performance prejudiced the

16   outcome of the proceeding, and that he exercised due

17   diligence in pursuing the case.     Iavorski v. INS, 232 F.3d

18   124, 135 (2d Cir. 2000).

19       The BIA did not abuse its discretion in finding that

20   Petitioners were not entitled to equitable tolling of the

21   filing period due to ineffective assistance of counsel.        See

22   Rabiu v. INS, 41 F.3d 879, 882-83 (2d Cir. 1994) (holding


                                    3
1    that, in order to be entitled to equitable tolling, a

2    petitioner must demonstrate that counsel’s performance was

3    so poor as to impinge on the fundamental fairness of the

4    proceedings).     As the BIA found, Petitioners could not

5    establish prejudice because they did not seek new

6    representation until after their orders of removal were

7    administratively final and the deadline for filing both a

8    motion to reopen and a petition for review had passed.      See

9    id.

10          The BIA also did not abuse its discretion in finding

11   that Petitioners failed to demonstrate changed conditions in

12   Montenegro.     See Wei Guang Wang v. BIA, 437 F.3d 270, 275

13   (2d Cir. 2006) (holding that the Board is not required to

14   “expressly parse or refute . . . each individual . . . piece

15   of evidence offered by the petitioner”).     The BIA reasonably

16   found that the evidence Petitioners submitted showed a

17   continuation of the same conditions that had prevailed

18   during their merits hearing, and arguably showed an

19   improvement.     Thus, the BIA’s decision is supported by

20   substantial evidence.     See

21   8 U.S.C. § 1229a(c)(7)(C)(ii); Jian Hui Shao, 546 F.3d at

22   169.


                                     4
1        Finally, we lack jurisdiction to review Petitioners’

2    argument that the BIA erred in refusing to reopen their

3    proceeding sua sponte under 8 C.F.R. § 1003.2(a), because

4    such a decision is “entirely discretionary.”    See Azmond Ali

5    v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006); see also

6    Kucana v. Holder, 130 S. Ct. 827, 839 n.18 (2010).

7        For the foregoing reasons, the petition for review is

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

9    removal that the Court previously granted in this petition

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

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

12   oral argument in this petition is DENIED in accordance with

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

14   Circuit Local Rule 34.1(b).

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




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