     09-4828-ag
     Nicaj v. Holder
                                                                                      BIA
                                                                              A073 558 250
                            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 27 th day of September, two thousand ten.
 5
 6   PRESENT:
 7            REENA RAGGI,
 8            RICHARD C. WESLEY,
 9            GERARD E. LYNCH,
10                 Circuit Judges.
11   _______________________________________
12
13   ALTIN NICAJ,
14            Petitioner,
15
16                     v.                                   09-4828-ag
17                                                          NAC
18   ERIC H. HOLDER, JR., U.S. ATTORNEY
19   GENERAL,
20            Respondent.
21   ______________________________________
22
23
24   FOR PETITIONER:                Sokol Braha, New York, New York.
25
26   FOR RESPONDENT:                Tony West, Assistant Attorney General,
27                                  Ernesto H. Molina, Jr., Assistant
28                                  Director, Jamie M. Dowd, Senior
29                                  Litigation Counsel, Office of
30                                  Immigration Litigation, Civil
31                                  Division, United States Department of
32                                  Justice, 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 Altin Nicaj, a native and citizen of Albania,

6    seeks review of the October 26, 2009, order of the BIA

7    denying his motion to reopen.     In re Altin Nicaj, No. A 073

8    558 250 (B.I.A. Oct. 26, 2009).      We assume the parties’

9    familiarity with the underlying facts and procedural history

10   of the case.

11       The BIA did not abuse its discretion in denying Nicaj’s

12   untimely and number-barred motion to reopen.      See Ali v.

13   Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).      Motions to

14   reopen in absentia orders are governed by different rules

15   depending on whether the movant seeks to rescind the order or

16   present new evidence.     See Song Jin Wu v. INS, 436 F.3d 157,

17   163 (2d Cir. 2006).     Because Nicaj sought reopening based on

18   new evidence, we analyze the motion under the general motion

19   to reopen procedures set forth in 8 C.F.R. §§ 1003.2(c),

20   1003.23(b).    The regulations provide that “a party may file

21   only one motion to reopen deportation or exclusion

22   proceedings . . . and that motion must be filed no later than


                                      2
1    90 days after the date on which the final administrative

2    decision was rendered in the proceeding sought to be

3    reopened, or on or before September 30, 1996, whichever is

4    later.”   8 C.F.R. § 1003.2(c)(2).   Nicaj does not dispute

5    that his April 2009 motion was untimely and number-barred.

6    Rather, he argues that the BIA should have tolled the time

7    limitations to accommodate his ineffective assistance of

8    counsel claim.

9        In order to warrant equitable tolling, an alien is

10   required to demonstrate “due diligence” in pursuing his

11   claims during “both the period of time before the ineffective

12   assistance of counsel was or should have been discovered and

13   the period from that point until the motion to reopen is

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

15   see also Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006)

16   (requiring an affirmative demonstration of the exercise of

17   due diligence).   The BIA did not abuse its discretion in

18   declining to equitably toll the filing deadline for Nicaj’s

19   motion to reopen because, as it found, he failed to

20   demonstrate that he exercised due diligence in pursuing his

21   ineffective assistance claim, as his motion was filed more

22   than 90 days after his discovery of his ineffective


                                    3
1    assistance claim.    Rashid, 533 F.3d at 132.

2         Nicaj argues that the BIA’s decision was “devoid of any

3    reasoning” and he demonstrated that he exercised due

4    diligence because he “never stopped pursuing his immigration

5    matters ... and actively tried to obtain lawful status.”

6    Nicaj’s argument is without merit.    As the BIA noted,

7    although Nicaj met his current attorney in May 2008 and a

8    letter from his current attorney indicates that he discovered

9    his first attorney’s ineffective representation prior to

10   December 2008, he did not file his motion to reopen until

11   April 2009.    Moreover, contrary to Nicaj’s argument that he

12   has been diligent in pursuing his immigration matters over

13   the past decade, that explanation does not address the BIA’s

14   specific finding that he did not exercise due diligence in

15   filing his ineffective assistance claim against his first

16   attorney. 1   Under these circumstances, we find no error in


              1
              In his brief, Nicaj argues that he received
        ineffective assistance of counsel from several
        (identified and unidentified) prior attorneys that he had
        purportedly retained to assist him with various
        immigration matters over the past decade. However, as
        the BIA found, although Nicaj “generally alleged
        misconduct against [several prior attorneys] . . . he has
        not claimed that reopening [was] warranted due to
        ineffective assistance on the part of any attorney other
        than [his first attorney], nor has he shown that he has
        attempted compliance with [the Lozada requirements].”

                                     4
1    the BIA’s conclusion that Nicaj did not exercise the

2    requisite due diligence.   See Rashid, 533 F.3d at 132; Cekic,

3    435 F.3d at 170.

4        For the foregoing reasons, the petition for review is

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

6    that the Court previously granted in this petition is

7    VACATED, and any pending motion for a stay of removal in this

8    petition is DISMISSED as moot.

 9                               FOR THE COURT:
10                               Catherine O’Hagan Wolfe, Clerk
11
12
13




        BIA op. at 2. We identify no error in that
        determination. See Esposito v. INS, 987 F.2d 108, 110-11
        (2d Cir. 1993) (explaining that Matter of Lozada, 19 I &
        N Dec. 637 (BIA 1988), requires a successful ineffective
        assistance of counsel claim be accompanied by: “(1) an
        affidavit setting forth in detail the agreement with
        former counsel concerning what action would be taken and
        what counsel did or did not represent in this regard; (2)
        proof that the alien notified former counsel of the
        allegations of ineffective assistance and allowed counsel
        an opportunity to respond; and (3) if a violation of
        ethical or legal responsibilities is claimed, a statement
        as to whether the alien filed a complaint with any
        disciplinary authority regarding counsel’s conduct and,
        if a complaint was not filed, an explanation for not
        doing so”).

                                      5
