         09-1989-ag
         Hoyos v. Holder
                                                                                       BIA
                                                                               A098 361 208
                            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 21 st day of January, two thousand ten.
 5
 6       PRESENT:
 7                PIERRE N. LEVAL,
 8                JOSÉ A. CABRANES,
 9                DEBRA ANN LIVINGSTON,
10                         Circuit Judges.
11       ______________________________________
12
13       MARIA ISABEL HOYOS, a.k.a. MARIA
14       ISABEL ROMERO,
15                Petitioner,
16                                                              09-1989-ag
17                         v.                                   NAC
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
 1   FOR PETITIONER:           William H. Oltarsh, New York,
 2                             New York.
 3
 4   FOR RESPONDENT:           Tony West, Assistant Attorney
 5                             General; Keith I. McManus, Senior
 6                             Litigation Counsel; Nairi M.
 7                             Simonian, Office of Immigration
 8                             Litigation, United States Department
 9                             of Justice, Washington, D.C.
10
11       UPON DUE CONSIDERATION of this petition for review of a

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

13   ORDERED, ADJUDGED, AND DECREED that the petition for review

14   is DENIED.

15       Petitioner Maria Isabel Hoyos, a native and citizen of

16   Colombia, seeks review of an April 22, 2009 order of the BIA

17   denying her motion to reopen.       In re Maria Isabel Hoyos,

18   a.k.a. Maria Isabel Romero, No. A098 361 208 (B.I.A. Apr.

19   22, 2009).     We assume the parties’ familiarity with the

20   underlying facts and procedural history of the case.

21       We find that the BIA did not abuse its discretion in

22   denying Hoyos’s motion to reopen as untimely.       See Ali v.

23   Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).       There is no

24   dispute that Hoyos’s motion to reopen, filed in August 2008,

25   was untimely because the IJ’s order of removal became final

26   in May 2006.     See 8 C.F.R. § 1003.2(c)(2) (providing that an

27   alien seeking to reopen proceedings may file one motion to


                                     2
1    reopen no later than 90 days after the date on which the

2    final administrative decision was rendered).       However, the

3    deadline may be equitably tolled to accommodate claims of

4    ineffective assistance of counsel, provided, among other

5    requirements, that the movant shows that she was prejudiced

6    by her counsel’s performance.       See Rashid v. Mukasey, 533

7    F.3d 127, 131 (2d Cir. 2008).

8        The BIA reasonably found that Hoyos failed to

9    demonstrate that she was prejudiced by her former counsel’s

10   allegedly deficient performance, noting that a timely motion

11   to reopen would have been due in August 2006, while Hoyos

12   did not meet with her former counsel until January 2007, and

13   indeed her marriage to a U.S. citizen – the basis of her

14   motion to reopen for adjustment of status – did not take

15   place until December 2006.   Although Hoyos argues that the

16   BIA’s decision was based on the standards set forth in

17   Matter of Compean, 24 I. & N. Dec. 710 (A.G. 2009), a

18   decision which was later vacated, see Matter of Compean, 25

19   I. & N. Dec. 1, 3 (A.G. 2009), even under the applicable

20   pre-Compean standard, a motion to reopen for ineffective

21   assistance of counsel required a showing that counsel’s

22   deficient performance prejudiced the outcome of the alien’s


                                     3
1    proceedings.   See Rashid, 533 F.3d at 131.   Moreover,

2    insofar as the BIA is the administrative body to which the

3    motion Hoyos’s former counsel allegedly failed to file would

4    have been directed, the BIA’s statement that “there is no

5    indication that such a motion would have been granted[,]” is

6    tantamount to a finding that it would have denied the

7    untimely motion pursuant to its discretionary authority

8    under 8 C.F.R. § 1003.2(a).    Accordingly, the BIA’s denial

9    of Hoyos’s motion was not an abuse of discretion.

10       For the foregoing reasons, the petition for review is

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

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

13   Any pending request for oral argument in this petition is

14   DENIED in accordance with Federal Rule of Appellate

15   Procedure 34(a)(2), and Second Circuit Local Rule 34(b).

16                                 FOR THE COURT:
17                                 Catherine O’Hagan Wolfe, Clerk
18
19
20




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