         11-3099
         Mamudoski-Ajvaz v. Holder
                                                                                         BIA
                                                                                 A029 941 216
                                                                                 A029 941 217
                               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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 4th day of April, two thousand thirteen.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                PIERRE N. LEVAL,
10                SUSAN L. CARNEY,
11                     Circuit Judges.
12       _________________________________________
13
14       ADEM MAMUDOSKI-AJVAZ, NAKSIE MAMUDOSKA,
15                Petitioners,
16
17                          v.                                   11-3099
18                                                               NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _________________________________________
23
24       FOR PETITIONERS:               Sokol Braha, New York, New York.
25
26       FOR RESPONDENT:                Tony West, Assistant Attorney
27                                      General; Terri J. Scadron, Assistant
28                                      Director; Kathryn L. DeAngelis,
29                                      Trial Attorney, Office of
30                                      Immigration Litigation, United
31                                      States Department of Justice,
32                                      Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   is DENIED.

 5       Petitioners Adem Mamudoski-Ajvaz and Naksie Mamudoska,

 6   natives of the former Yugoslavia and citizens of Macedonia,

 7   seek review of a July 14, 2011, decision of the BIA denying

 8   their second motion to reopen.    In re Adem Mamudoski-Ajvaz,

 9   Naksie Mamudoska, Nos. A029 941 216/217 (B.I.A. July 14,

10   2011).   We assume the parties’ familiarity with the

11   underlying facts and procedural history in this case.

12       We review the BIA’s denial of a motion to reopen for

13   abuse of discretion.   Ali v. Gonzales, 448 F.3d 515, 517 (2d

14   Cir. 2006).   Aliens seeking to reopen proceedings may file

15   one motion to reopen no later than 90 days after the date on

16   which the final administrative decision was rendered.

17   8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2).

18   Indisputably, petitioners’ 2010 motion was untimely and

19   number-barred because it was their second motion to reopen

20   and it was filed more than 13 years after the final

21   administrative order in their deportation proceedings.     See

22   8 U.S.C. § 1229a(c)(7)(A), (C); see also 8 C.F.R.


                                   2
 1   § 1003.2(c)(2). Moreover, the BIA did not abuse its

 2   discretion in declining to equitably toll the time

 3   limitation for filing their motion to reopen based on their

 4   claim of ineffective assistance of counsel.

 5       In order to warrant equitable tolling, even assuming

 6   that prior counsel was ineffective, an alien is required to

 7   demonstrate due diligence in pursuing the claim during “both

 8   the period of time before the ineffective assistance of

 9   counsel was or should have been discovered and the period

10   from that point until the motion to reopen is filed.”

11   Rashid v. Mukasey, 533 F.3d 127, 131 (2d Cir. 2008); see

12   also Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006).    As the

13   BIA concluded, petitioners failed to demonstrate due

14   diligence.   They did not allege any action to discover or

15   pursue ineffective assistance between the denial of relief

16   from deportation in 1996 and their motion to reopen based on

17   that claim in 2010.   See Jian Hua Wang v. BIA, 508 F.3d 710,

18   715 (2d Cir. 2007).   This conclusion is dispositive of the

19   petition for review insofar as it relates to petitioners’

20   ineffective assistance of counsel claim.   We decline to

21   consider the parties’ alternative arguments.

22



                                   3
 1       Remand for the BIA to explicitly consider the request

 2   for sua sponte reopening based on good moral character and

 3   ties to the United States would be futile.    See Alam v.

 4   Gonzales, 438 F.3d 184, 187-88 (2d Cir. 2006).    The BIA

 5   previously denied as untimely petitioners’ motion to reopen

 6   based on these factors, and, in the instant motion, they did

 7   not assert that they were eligible for any new forms of

 8   relief.   See Matter of G-D-, 22 I. & N. Dec. 1132, 1133-34

 9   (BIA 1999) (“[W]e invoke our sua sponte authority sparingly,

10   treating it not as a general remedy for any hardships

11   created by enforcement of the time and number limits in the

12   motions regulations, but as an extraordinary remedy reserved

13   for truly exceptional situations.”).

14       For the foregoing reasons, the petition for review is

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

16   removal that the Court previously granted in this petition

17   is VACATED, and any pending motion for a stay of removal in

18   this petition is DISMISSED as moot. Any pending request for

19   oral argument in this petition is DENIED in accordance with

20   Federal Rule of Appellate Procedure 34(a)(2), and Second

21   Circuit Local Rule 34.1(b).

22                                 FOR THE COURT:
23                                 Catherine O’Hagan Wolfe, Clerk
24




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