         10-2336-ag
         Porras v. Holder
                                                                                       BIA
                                                                                Montante, IJ
                                                                               A098 422 587
                             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 14th day of September, two thousand eleven.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                JOSÉ A. CABRANES,
 9                ROBERT D. SACK,
10                     Circuit Judges.
11       _____________________________________
12
13       YESENIA GRETTEL PORRAS,
14                Petitioner,
15                                                              10-2336-ag
16                          v.                                  NAC
17
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Stephen A. Lagana, Stephen A Pegnam,
24                                     Lawrence, MA.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Leslie McKay, Assistant
28                                     Director; Anna Nelson, Trial
29                                     Attorney, Office of Immigration
30                                     Litigation, Civil Division, United
31                                     States Department of Justice,
32                                     Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   review is DENIED.

 5       Petitioner, Yesenia Grettel Porras, a native and

 6   citizen of Costa Rica, seeks review of a May 28, 2010, order

 7   of the BIA affirming the decision of an immigration judge

 8   (“IJ”), denying her motion to reopen her removal

 9   proceedings.    In re Yesenia Grettel Porras, No. A098 422 587

10   (B.I.A. May 28, 2010), aff’g No. A098 422 587 (Immig. Ct.

11   N.Y. City June 3, 2008).    We assume the parties’ familiarity

12   with the underlying facts and procedural history of the

13   case.

14       We review the agency’s denial of a motion to reopen for

15   abuse of discretion.    Cekic v. INS, 435 F.3d 167, 170 (2d

16   Cir. 2006).    An alien may only file one motion to reopen and

17   must do so within 90 days of the agency’s final

18   administrative decision.    8 C.F.R. § 1003.23(b).   The motion

19   to reopen at issue was filed outside of this period as

20   Porras was ordered removed in 2005 and did not file the

21   motion until 2008.

22       Porras argues, however, that the agency abused its

23   discretion in denying her motion because the time limitation

                                    2
 1   should have been excused based on ineffective assistance of

 2   counsel.   The deadline for filing a motion to reopen may be

 3   equitably tolled to accommodate claims of ineffective

 4   assistance of counsel, so long as the movant has exercised

 5   “due diligence” in vindicating her rights.    See Cekic, 435

 6   F.3d at 171.   Here, the BIA did not abuse its discretion in

 7   determining that Porras failed to exercise due diligence

 8   because, although Porras had knowledge of her final order of

 9   removal in 2005, she waited more than three years before

10   raising her ineffective assistance of counsel claim, did not

11   indicate any steps taken between June 2005 and April 2007 to

12   pursue her claim, and did not argue that she relied on any

13   assurances from her former counsel regarding her case.       See

14   Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008) (holding

15   that petitioner failed to exercise due diligence when, after

16   he knew or should have known of his initial counsel’s

17   alleged ineffective assistance, he waited 14 months to

18   further pursue his case); Jian Hua Wang v. BIA, 508 F.3d

19   710, 715 (2d Cir. 2007) (holding that waiting 8 months after

20   the receipt of relevant documents did not demonstrate due

21   diligence).    Cf. Cekic, 435 F.3d at 169 (indicating that

22   petitioners could successfully toll a portion of the period

23   sought due to their “reliance upon their attorney’s repeated

24   assurances that their case was being pursued.”).

                                    3
 1       For the foregoing reasons, the petition for review is

 2   DENIED.   As we have completed our review, any pending motion

 3   for a stay of removal in this petition is DISMISSED as moot.

 4   Any pending request for oral argument in this petition is

 5   DENIED in accordance with Federal Rule of Appellate

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

 7   34.1(b).34.1(b).

 8                               FOR THE COURT:
 9                               Catherine O’Hagan Wolfe, Clerk
10




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