    13-50
    Moustain v. Holder
                                                                                  BIA
                                                                               Hom, IJ
                                                                          A097 535 718
                          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.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 23rd day of July, two thousand fourteen.

    PRESENT:
             ROBERT A. KATZMANN,
                  Chief Judge,
             SUSAN L. CARNEY,
             CHRISTOPHER F. DRONEY,
                  Circuit Judges.
    _____________________________________

    NAOUFAL ALAOUI MOUSTAIN,
             Petitioner,

                         v.                                  13-50
                                                             NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                Lawrence Spivak, Jamaica, NY.

    FOR RESPONDENT:                Stuart F. Delery, Assistant Attorney
                                   General; John S. Hogan, Senior
                                   Litigation Counsel; David H.
                                   Wetmore, Trial Attorney, Office of
                                   Immigration Litigation, United
                                   States Department of Justice,
                                   Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, and DECREED that the petition for review

is DENIED.

    Petitioner Naoufal Alaoui Moustain, a native and

citizen of Morocco, seeks review of a December 14, 2012,

decision of the BIA affirming a December 13, 2010, decision

of Immigration Judge (“IJ”) Sandy K. Hom denying his motion

to reopen. In re Naoufal Alaoui Moustain, No. A097 535 718

(B.I.A. Dec. 14, 2012), aff’g No. A097 535 718 (Immig. Ct.

N.Y.C. Dec. 13, 2010). We have considered both the IJ’s and

the BIA’s opinions “for the sake of completeness.”    Zaman v.

Mukasey, 514 F.3d 233, 237 (2d Cir. 2008) (per curiam)

(quoting Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.

2006)). We review the agency’s denial of a motion to reopen

for abuse of discretion. See Ali v. Gonzales, 448 F.3d 515,

517 (2d Cir. 2006) (per curiam). We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

    Moustain first argues that the BIA erred in not

transcribing two prior hearings and requests that his case

be remanded for transcription. Additionally, Moustain


                             2
contends that his counsel during his 2007 deportation

proceeding was ineffective because he did not raise the

issue of Moustain’s incompetence at that time. However, as

the government notes, Moustain failed to raise either of

these claims before the agency. Because these claims are

unexhausted, we decline to consider them here. See Lin Zhong

v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20, 124 (2d Cir.

2007); Garcia-Martinez v. Dep’t of Homeland Sec., 448 F.3d

511, 513 (2d Cir. 2006).

    With respect to the issues properly before the Court,

we find that the BIA did not abuse its discretion in

concluding that Moustain’s motion to reopen was both

untimely and numerically barred. An alien seeking to reopen

proceedings may file one motion to reopen no later than 90

days after the date on which the final administrative

decision was rendered. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8

C.F.R. § 1003.23(b)(1). Here, Moustain’s June 2010 motion

was his second motion to reopen and was filed more than two

years after the IJ’s December 2007 final order of removal,

making it both untimely and number-barred.1 In any case, the


    1
      The time and number limitations on a motion to reopen
may be excused to accommodate claims of ineffective
assistance of counsel. See Rashid v. Mukasey, 533 F.3d 127,
                             3
BIA did not abuse its discretion in denying Moustain’s

motion to reopen on the merits, as the BIA was entitled to

conclude from the record before it that Moustain failed to

establish that his depression affected the outcome of the

December 2007 proceedings.

    For the foregoing reasons, the petition for review is

DENIED.

                             FOR THE COURT:
                             Catherine O’Hagan Wolfe, Clerk




132 (2d Cir. 2008). However, as discussed above, Moustain
failed to administratively exhaust his claim that his 2007
attorney was ineffective.
                              4
