         10-753-ag
         Zahra v. Holder
                                                                                       BIA
                                                                                  Weisel, IJ
                                                                               A073 650 277
                            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 24th day of January, two thousand twelve.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                JOSÉ A. CABRANES,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       FATIMATA ZAHRA,
14                Petitioner,
15                                                              10-753-ag
16                         v.                                   NAC
17
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Fatimata Zahra, Pro Se,
24                                     Brooklyn, New York
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Keith I. McManus, Senior
28                                     Litigation Counsel; P. Michael
29                                     Truman, Attorney, Office of
30                                     Immigration Litigation, Civil
31                                     Division, United States Department
32                                     of 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, Fatimata Zahra, a native and citizen of

 6   Mauritania, seeks review of a February 4, 2010, order of the

 7   BIA affirming the January 14, 2009 decision of Immigration

 8   Judge (“IJ”) Robert D. Weisel denying her motion to reopen

 9   her removal proceedings.   In re Fatimata Zahra, No. A073 650

10   277 (B.I.A. Feb. 4, 2010), aff’g No. A073 650 277 (Immig.

11   Ct. N.Y. City Jan. 14, 2009).       We assume the parties’

12   familiarity with the underlying facts and procedural history

13   of the case.

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

15   apply for relief based on new evidence or to rescind an in

16   absentia order for abuse of discretion.       See Kaur v. BIA,

17   413 F.3d 232, 233 (2d Cir. 2005), Alrefae v. Chertoff, 471

18   F.3d 353, 357 (2d Cir. 2006).       The statute and regulations

19   provide that an alien may file one motion to reopen

20   proceedings based on new, previously unavailable evidence,

21   but that motion must be filed within 90 days of the final

22   administrative decision.   8 U.S.C. § 1229a(c)(7)(A),(C);


                                     2
 1   8 C.F.R. § 1003.23(b).   Where the motion to reopen requests

 2   recission of an in absentia order based on “exceptional

 3   circumstances” to excuse the failure to appear, the motion

 4   must be filed within 180 days of the in absentia order.

 5   8 U.S.C. § 1229a(b)(5)(C)(i).       The motion to reopen at issue

 6   was filed outside of both the 90- and 180-day periods, as

 7   Zahra was ordered removed in 2002 and did not file the

 8   motion until 2008.

 9       Zahra argues, however, that the agency abused its

10   discretion in denying her motion because the time limitation

11   should have been excused based on ineffective assistance of

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

13   equitably tolled to accommodate claims of ineffective

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

15   “due diligence” in vindicating her rights.       See Cekic v.

16   I.N.S., 435 F.3d 167, 171 (2d Cir. 2006).       Here, the BIA did

17   not abuse its discretion in determining that Zahra failed to

18   exercise due diligence because, although Zahra had knowledge

19   of her final order of removal in September 2002, she waited

20   six years, until November 2008, to file her motion.

21   Moreover, Zahra did not indicate that she took any steps to

22   pursue or check on the status of her case between August


                                     3
 1   2005 and April 2008, despite having been ordered removed in

 2   2002, and having been aware in 2005 that a motion to reopen

 3   either had not previously been filed or had been

 4   unsuccessful.    See Iavorski v. INS, 232 F.3d 124, 134 (2d

 5   Cir. 2000) (finding a lack of due diligence when petitioner

 6   failed to investigate status of appeal for approximately two

 7   years); Cekic, 435 F.3d at 172 (denying motion to reopen

 8   where petitioners’ “submissions in support of their second

 9   motion to reopen fail[ed] to provide even the slightest

10   indication that they took any action to protect

11   themselves.”).

12       For the foregoing reasons, the petition for review is

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

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

15   Any pending request for oral argument in this petition is

16   DENIED in accordance with Federal Rule of Appellate

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

18   34.1(b).34.1(b).

19                                FOR THE COURT:
20                                Catherine O’Hagan Wolfe, Clerk
21




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