         12-3950
         Adjehoun v. Holder
                                                                                       BIA
                                                                               A073 170 076
                               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 14th day of January, two thousand fourteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                DENNY CHIN,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       KOFI ADJEHOUN,
14                Petitioner,
15
16                            v.                                12-3950
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                Theodore A. Vialet, New York, NY.
24
25       FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
26                                      Attorney General; Jennifer P.
27                                      Williams, Senior Litigation Counsel;
28                                      Colette J. Winston, Trial Attorney,
29                                      Office of Immigration Litigation,
30                                      United States Department of Justice,
31                                      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       Petitioner Kofi Adjehoun, a native and citizen of Togo,

 6   seeks review of a September 13, 2012, decision of the BIA

 7   denying his motion to reopen his removal proceedings.       In re

 8   Kofi Adjehoun, No. A073 170 076 (B.I.A. Sept. 13, 2012).      We

 9   assume the parties’ familiarity with the underlying facts

10   and procedural history in this case.

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

12   abuse of discretion.   See Ali v. Gonzales, 448 F.3d 515, 517

13   (2d Cir. 2006) (per curiam).   An alien seeking to reopen

14   proceedings is required to file a motion to reopen no later

15   than 90 days after the date on which the final

16   administrative decision was rendered.   See 8 U.S.C.

17   § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2).    There is no

18   dispute that Adjehoun’s motion to reopen, filed in 2012, was

19   untimely because he was ordered removed in absentia in 2002.

20       Adjehoun contends, however, that the time period for

21   filing his motion to reopen should have been tolled due to

22   his prior counsel’s ineffective assistance.    Under the

23   doctrine of equitable tolling, ineffective assistance of

                                    2
 1   counsel may toll the time limitation on a motion to reopen

 2   where the movant has exercised “due diligence” in pursuing

 3   his claim.    See Rashid v. Mukasey, 533 F.3d 127, 131 (2d

 4   Cir. 2008).   However, the movant is required to exercise due

 5   diligence both before and after he has or should have

 6   discovered the alleged ineffective assistance.       See id. at

 7   132; Iavorski v. U.S. INS, 232 F.3d 124, 134 (2d Cir. 2000).

 8       The BIA did not abuse its discretion in denying his

 9   motion to reopen as untimely for failure to exercise due

10   diligence throughout the entire period sought to be tolled.

11   See Rashid, 533 F.3d at 130; Kaur v. BIA, 413 F.3d 232,

12   233-34 (2d Cir. 2005) (per curiam).    Indeed, Adjehoun

13   acknowledged in his motion to reopen that he “did not do

14   anything for awhile” after the denial of his motion to

15   rescind and reopen in November 2002.    Adjehoun’s

16   representation—that he relied on his second attorney’s

17   advice that nothing could be done to pursue his case for

18   approximately eight years before consulting with his current

19   attorney for unspecified reasons on an unspecified date—is

20   insufficient to demonstrate that he diligently pursued his

21   claim.   See Rashid, 533 F.3d at 132-33; see also Jian Hua

22   Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007).       Accordingly,


                                    3
 1   the BIA did not abuse its discretion in finding that

 2   Adjehoun did not merit equitable tolling.    See Kaur, 413

 3   F.3d at 233-34.

 4       For the foregoing reasons, the petition for review is

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

 6   removal that the Court previously granted in this petition

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

 8   this petition is DENIED as moot.    Any pending request for

 9   oral argument in this petition is DENIED in accordance with

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

11   Circuit Local Rule 34.1(b).

12                                 FOR THE COURT:
13                                 Catherine O’Hagan Wolfe, Clerk




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