10-2930-ag
Kolyagin v. Holder

                            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 THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.
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.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 22nd day of February, two thousand twelve.

Present:    ROSEMARY S. POOLER,
            DEBRA ANN LIVINGSTON,
            RAYMOND J. LOHIER, JR.,
                        Circuit Judges.
_____________________________________________________

VLADIMIR GENNADIYEVICH KOLYAGIN, NATALYA
YEVGENIYENNA KOLYGINA, GENNADITY
VLADIMIROVICH KOLYAGIN,

                                      Petitioners,

                        -v.-                                        10-2930-ag

ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,

                                      Respondent.


Appearing for Petitioner:      Aglaia Davis, Alexander Lumelsky, Lumelsky & Mogilevich,
                               LLP, Farmington, Conn.

Appearing for Respondent:      Keith I. McManus, Senior Litigation Counsel, Office of
                               Immigration Litigation; Matt A. Crapo, Trial Attorney, Office of
                               Immigration Litigation; Tony West, Assistant Attorney General,
                               Civil Division, United States Department of Justice, Washington,
                               D.C.
       Petition for review of an order of the Board of Immigration Appeals (“BIA”).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the petition for review is DENIED.

        Petitioners Vladimir Gennadiyevich Kolyagin, Natalya Yevgeniyenna Kolygina, and
Gennadity Vladimirovich Kolyagin petition for review of the June 3, 2010 decision by the BIA
denying their second motion to reopen their removal proceedings based on the ineffective
assistance of their first attorney, Crescenzo DeLuca. Petitioners argue that the BIA erred in
holding that they had not established the requisite due diligence. We assume the parties’
familiarity with the underlying facts, procedural history, and specification of issues for review.

        This Court reviews the BIA’s denial of a motion to reopen for abuse of discretion. Ali v.
Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). Motions to reopen immigration proceedings are
disfavored. Id. (quoting INS v. Doherty, 502 U.S. 314, 322-23 (1992)). “[A]n alien is required
to exercise due diligence both before and after he has or should have discovered ineffective
assistance of counsel.” Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008) (emphasis in
original). Analyzing whether a movant has demonstrated the requisite due diligence entails a
two-step procedure that inquires, first, “whether and when the ineffective assistance [was], or
should have been, discovered by a reasonable person in the situation,” Wang v. Bd. of
Immigration Appeals, 508 F.3d 710, 715 (2d Cir. 2007) (alteration in original) (internal
quotation marks omitted), and, second, whether the movant “has exercised due diligence in the
period between discovering the ineffectiveness of [the attorney’s] representation and filing the
motion to reopen,” id. An ineffective assistance of counsel claim requires demonstrating that the
movant was prejudiced by counsel’s performance. Cekic v. INS, 435 F.3d 167, 171 (2d Cir.
2006).

        The BIA concluded that “[t]he claims against [petitioners’ first attorney] DeLuca could
have been raised by current counsel long ago,” because petitioners’ current counsel had received
a copy of the administrative record as early as September 10, 2007, and because the government
had filed its appellate brief arguing non-exhaustion on January 21, 2009.

         Petitioners admit that, in January 2009, their current counsel received the government’s
brief, in which the government argued that Kolyagin’s petition should be dismissed because he
had not administratively exhausted the issue of government involvement before the BIA. They
argue that, even after the government raised the affirmative defense, they did not reasonably
know that they had been prejudiced until this Court denied their petition for review for failure to
exhaust in July 2009, see Kolyagin v. Holder, 329 F. App’x 332, 333 (2d Cir. 2009) (summary
order), because this Court could have “overlook[ed] or overrule[d]” the government’s non-
exhaustion defense.

        This Court, however, may not overlook a failure to exhaust when the government asserts
non-exhaustion as an affirmative defense. While the requirement of issue exhaustion is not
jurisdictional, it is mandatory. See Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107 (2d Cir.
2007). Thus, if the government raises failure to exhaust an issue as a defense, “the court must
decline to consider that issue, except in those extraordinary situations in which we have held that
such issues can be considered even when exhaustion is a jurisdictional matter.” Id. at 107 n.1

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(emphasis added) (citing Marrero Pichardo v. Ashcroft, 374 F.3d 46, 52-53 (2d Cir. 2004)).
Here, petitioners do not argue that their petition presented an “extraordinary situation” that
would have permitted the court to consider the unexhausted issue.

        At least from the time at which their current counsel received the government’s brief in
January 2009, petitioners reasonably should have known that DeLuca’s failure to brief a
dispositive issue to the BIA had prejudiced their case. They offer no adequate explanation for
the nine-month delay between their receipt of the government’s brief and their filing of the
motion to reopen. Thus, the BIA properly concluded that petitioners had not demonstrated the
required “due diligence in the period between discovering the ineffectiveness . . . and filing the
motion to reopen.” Wang, 508 F.3d at 715; see id. at 716 (concluding that BIA properly
considered counsel’s five-month filing delay in denying petitioner’s motion to reopen, where
“[y]ears ha[d] passed after the normal 90-day time limit to reopen had expired”).1

        We therefore DENY the petition for review.



                                                              FOR THE COURT:
                                                              Catherine O’Hagan Wolfe, Clerk




        1
          We note that Kolyagin may now file yet another motion to reopen premised on the ineffectiveness of his
current counsel as well as DeLuca. See Wang, 508 F.3d at 716 n.10 (affirming denial of motion to reopen but
recognizing that petitioner “could now file a second motion to reopen premised on the ineffectiveness of his second
counsel as well as his first”); Jin Bo Zhao v. INS, 452 F.3d 154, 158 (2d Cir. 2006) (declining to hold petitioner
responsible for untimeliness of previous motion to reopen where nothing in the record suggested he knew or
reasonably should have known that his counsel had missed the deadline).

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