         11-298-ag
         Jahangir v. Holder
                                                                                         BIA
                                                                                 A079 077 555
                               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 10th day of February, two thousand twelve.
 5
 6       PRESENT:
 7                JOSEPH M. MCLAUGHLIN,
 8                GUIDO CALABRESI,
 9                REENA RAGGI,
10                    Circuit Judges.
11       _________________________________________
12
13       MOHAMMED JAHANGIR,
14                Petitioner,
15
16                            v.                                   11-298-ag
17                                                                 NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _________________________________________
22
23       FOR PETITIONER:                Thomas V. Massucci, New York, New
24                                      York.
25
26       FOR RESPONDENT:                Tony West, Assistant Attorney
27                                      General; Anthony W. Norwood, Greg D.
28                                      Mack, Senior Litigation Counsel,
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 Mohammed Jahangir, a native and citizen of

 6   Bangladesh, seeks review of the December 27, 2010, order of

 7   the BIA denying his motion to reopen.     In re Mohammed

 8   Jahangir, No. A079 077 555 (B.I.A. Dec. 27, 2010).      We

 9   assume the parties’ familiarity with the underlying facts

10   and procedural history of the case.

11       The BIA’s denial of Jahangir’s motion to reopen as

12   untimely and number-barred was not an abuse of discretion.

13   See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per

14   curiam).     An alien may file one motion to reopen, generally

15   no later than 90 days after the date on which the final

16   administrative decision was rendered in the proceedings

17   sought to be reopened.     8 U.S.C. § 1229a(c)(7)(A), (C)(i);

18   8 C.F.R. § 1003.2(c)(2).     There is no dispute that

19   Jahangir’s 2010 motion was untimely and number-barred, as he

20   previously filed three motions to reopen, and the final

21   administrative order was issued in 2006.     See 8 U.S.C.

22   § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2).      In some


                                     2
 1   instances, however, the agency may excuse the time and

 2   numerical limitations if an alien demonstrates ineffective

 3   assistance of counsel.   See Rabiu v. INS, 41 F.3d 879, 882

 4   (2d Cir. 1994).   To prevail on a claim of ineffective

 5   assistance, an applicant must demonstrate that “competent

 6   counsel would have acted otherwise,” Esposito v. INS, 987

 7   F.2d 108, 111 (2d Cir. 1993), and that he was prejudiced as

 8   a result of his counsel’s poor performance, see Rabiu, 41

 9   F.3d at 882.

10       Here, the BIA did not abuse its discretion in

11   dismissing Jahangir’s claim of ineffective assistance

12   against Anthony Collins because only Collins’s associate,

13   not Collins, represented Jahangir.   Contrary to Jahangir’s

14   contention, the BIA reasonably found that its regulations

15   hold only the individual attorney, not his firm, accountable

16   for ineffective representation.   See 8 C.F.R. §§ 1003.17,

17   1003.101 (requiring individual attorneys to enter their

18   appearance before the Immigration Court and confirm their

19   submission to the BIA’s authority to sanction); Perriello v.

20   Napolitano, 579 F.3d 135, 138 (2d Cir. 2009) (the Court

21   deems the BIA’s interpretation of its regulations to be

22   controlling “unless plainly erroneous or inconsistent with

23   the regulation.”).


                                   3
 1       The BIA also reasonably determined that Jahangir failed

 2   to establish that M. Najmul Alam provided ineffective

 3   representation.   Alam denied Jahangir’s allegations that he

 4   failed to timely inform Jahangir of the BIA’s 2006 decision.

 5   The BIA reasonably found Alam more persuasive, particularly

 6   in light of Jahangir’s factually inaccurate assertions in

 7   his affidavit with respect to Collins’s representation.

 8       Moreover, even assuming that Jahangir’s counsel was

 9   ineffective, the BIA did not abuse its discretion in

10   declining to equitably toll the time for filing to reopen

11   because Jahangir failed to exercise due diligence.     See

12   Cekic v. INS, 435 F.3d 167, 171-72 (2d Cir. 2006) (holding

13   that equitable tolling is not available when the alien fails

14   to exercise due diligence in pursuing an ineffective

15   assistance claim).   Not until Jahangir filed his second

16   motion to reopen in 2009, two years after he allegedly

17   discovered Alam’s ineffectiveness, did he first claim

18   ineffective assistance of counsel.   The BIA therefore

19   reasonably found that Jahangir failed to exercise due

20   diligence.   See Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d

21   Cir. 2007) (citing several cases holding that “a petitioner

22   who waits two years or longer to take steps to reopen a


                                   4
 1   proceedings ha[d] failed to demonstrate due diligence”).

 2   Accordingly, the BIA did not abuse its discretion in denying

 3   Jahangir’s motion to reopen as untimely and number-barred.

 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 DISMISSED 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
14




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