     14-4241
     Marku v. Lynch
                                                                                       BIA
                                                                               A097 965 534
                                                                               A097 965 535
                           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 TO 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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   1st day of February, two thousand sixteen.
 5
 6   PRESENT:
 7            REENA RAGGI,
 8            SUSAN L. CARNEY,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   LUC MARKU, ELIZABETA MARKU,
14            Petitioners,
15
16                    v.                                             14-4241
17                                                                   NAC
18
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     Caridad Pastor Cardinale, Pastor &
25                                       Associates, P.C., Troy, Michigan.
26
27   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
28                                       Assistant Attorney General, Civil
29                                       Division; Jennifer P. Williams,
1                                  Senior Litigation Counsel;
2                                  Alexander J. Lutz, Trial Attorney,
3                                  Office of Immigration Litigation,
4                                  United States Department of Justice,
5                                  Washington, D.C.
6
7         UPON DUE CONSIDERATION of this petition for review of a

8    Board of Immigration Appeals (“BIA”) decision, it is hereby

9    ORDERED, ADJUDGED, AND DECREED that the petition for review is

10   DENIED.

11        Petitioners Luc Marku and Elizabeta Marku, natives and

12   citizens of Albania, seek review of a November 3, 2014, decision

13   of the BIA denying their second motion to reopen.       In re Luc

14   Marku, Elizabeta Marku, Nos. A097 965 534/535 (B.I.A. Nov. 3,

15   2014).    We assume the parties’ familiarity with the underlying

16   facts and procedural history in this case.

17        We review the BIA’s denial of a motion to reopen “for abuse

18   of   discretion,    mindful    that   motions   to   reopen   ‘are

19   disfavored.’”    Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006)

20   (quoting INS v. Doherty, 502 U.S. 314, 323 (1992)).      An alien

21   seeking to reopen proceedings is required to file a motion to

22   reopen no later than 90 days after the date on which the final

23   administrative decision was rendered and is permitted to file

24   only one such motion.   8 U.S.C. § 1229a(c)(7)(A) (allowing one
                                      2
1    motion), (C)(i) (setting 90-day filing deadline); 8 C.F.R.

2    § 1003.2(c)(2) (same).      The Markus’ May 2014 motion to reopen

3    was untimely and number barred because they filed it over four

4    years after the agency issued its final order of removal in April

5    2010 and because it was their second motion.

6        An   alien   may   be   excused   from   those   limitations   by

7    demonstrating ineffective assistance of counsel.         See Rashid

8    v. Mukasey, 533 F.3d 127, 130 (2d Cir. 2008).        The alien must

9    show prejudice as a result of the ineffective assistance, and

10   must have exercised due diligence in pursuing the claim.           See

11   id. at 130-31.   “[A]n alien must demonstrate that he or she has

12   exercised due diligence” in pursuing a claim during “both the

13   period of time before the ineffective assistance of counsel was

14   or should have been discovered and the period from that point

15   until the motion to reopen is filed.”        Id. at 132.

16       The BIA did not abuse its discretion in denying the Markus’

17   motion to reopen as untimely and number barred.      The Markus were

18   not diligent in pursuing their ineffective assistance claim for

19   the entire period they seek to toll—that is, from the BIA’s 2010

20   decision on appeal.    Moreover, they knew of the ineffectiveness

21   from the time of the 2008 immigration hearing, when their first
                                      3
1    attorney purportedly submitted fraudulent documents.         See

2    Rashid, 533 F.3d at 133.    They did not raise any ineffective

3    assistance claim until November 2013, when they filed their

4    first motion to reopen, over three years after the BIA’s

5    decision and after they knew about the fraudulent documents.

6    This delay showed a lack of due diligence.   See Jian Hua Wang

7    v. BIA, 508 F.3d 710, 715-16 (2d. Cir. 2007) (upholding BIA’s

8    finding of lack of due diligence after five-month delay);

9    Rashid, 533 F.3d at 132 (upholding BIA’s finding of lack of due

10   diligence after 14-month delay).

11       Because due diligence is a prerequisite to excusing the

12   time and number limitations on filing of a motion to reopen,

13   the Markus’ failure to show that diligence is dispositive.   We

14   decline to reach the BIA’s alternative determination that they

15   failed to show prejudice.   INS v. Bagamasbad, 429 U.S. 24, 25

16   (1976) (“As a general rule courts and agencies are not required

17   to make findings on issues the decision of which is unnecessary

18   to the results they reach.”).

19       For the foregoing reasons, the petition for review is

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

21   that the Court previously granted in this petition is VACATED,
                                     4
1   and any pending motion for a stay of removal in this petition

2   is DISMISSED as moot.   Any pending request for oral argument

3   in this petition is DENIED in accordance with Federal Rule of

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

5   34.1(b).

6                               FOR THE COURT:
7                               Catherine O=Hagan Wolfe, Clerk




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