         11-3577
         Reefer v. Holder
                                                                                        BIA
                                                                                  Nelson, IJ
                                                                               A073 571 566
                             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 23rd day of May, two thousand thirteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                REENA RAGGI,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       MARVA GLENDA REEFER,
14                Petitioner,
15
16                          v.                                  11-3577
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Garth Molander, Bohemia, New York.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; Russell J.E.
27                                     Verby, Senior Litigation Counsel;
28                                     Tim Ramnitz, Attorney, Office of
29                                     Immigration Litigation, Civil
30                                     Division, United States Department
31                                     of Justice, Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   review is DENIED.

 5       Petitioner Marva Glenda Reefer, a native and citizen of

 6   Trinidad and Tobago, seeks review of an August 8, 2011,

 7   order of the BIA affirming a July 16, 2009, decision of

 8   immigration judge (“IJ”) Barbara A. Nelson, which denied her

 9   second motion to reopen.     In re Marva Glenda Reefer, No.

10   A073 571 566 (B.I.A. Aug. 8, 2011), aff’g No. A073 571 566

11   (Immig. Ct. N.Y. City July 16, 2009).    We assume the

12   parties’ familiarity with the underlying facts and

13   procedural history in this case.

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

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

16   (2d Cir. 2006) (per curiam).    An alien seeking to reopen

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

18   than 90 days after the date on which the final

19   administrative decision was rendered, and is permitted to

20   file only one such motion.     See 8 U.S.C. § 1229a(c)(7)(A),

21   (C); 8 C.F.R. § 1003.23(b).    There is no dispute that

22   Reefer’s second motion to reopen, filed over 10 years after


                                     2
 1   the immigration judge’s (“IJ”) order of deportation became

 2   final, was untimely and number-barred.

 3       Reefer contends, however, that the time limitation

 4   should be tolled due to her prior counsels’ ineffective

 5   assistance.   See Rashid v. Mukasey, 533 F.3d 127, 130 (2d

 6   Cir. 2008) (holding that ineffective assistance of counsel

 7   may toll the time limitation on a motion to reopen).     To

 8   demonstrate ineffective assistance of counsel, a movant must

 9   show that competent counsel would have acted otherwise, and

10   that she was prejudiced by her counsels’ performance.     See

11   Rabiu v. INS, 41 F.3d 879, 882-83 (2d Cir. 1994).

12       The agency did not abuse its discretion in denying

13   Reefer’s motion as she failed to demonstrate any prejudice

14   and thus did not establish ineffective assistance as

15   required to toll the time for filing her motion.    Reefer has

16   not established that she would have been eligible for any of

17   the forms of relief she sought.   First, she has not

18   submitted any evidence, or made any claims, to establish her

19   eligibility for asylum.   As to adjustment of status, by her

20   own admission she is not eligible for that relief, and she

21   has never disclosed what underlying benefit she sought with

22   her I-601 application, nor established that any waiver would

23   have been approved, had it not been abandoned.

                                   3
 1       Lastly, Reefer has not established her eligibility for

 2   suspension of deportation because she did not accrue the

 3   requisite seven years of physical presence to be eligible

 4   for that benefit.     See 8 U.S.C. § 1254(a)(1994).   Reefer

 5   argued before the agency that her former counsel failed to

 6   follow the “common practice” of continuing proceedings and

 7   waiting to submit an application until the seven years of

 8   physical presence had been acquired.     This argument is

 9   without merit because, as the BIA determined, it is the

10   issuance of the order to show cause, and not the submission

11   of the application for relief which ends tolling of the

12   physical presence period.     See Rojas-Reyes v. INS, 235 F.3d

13   115, 122-24 (2d Cir. 2000) (upholding retroactive

14   application of the “stop-time” rule in suspension of

15   deportation cases).    Therefore, because Reefer did not have

16   the requisite years of continuous physical presence at the

17   time the order to show cause was issued in 1995, because she

18   last entered the United States in 1990, she was ineligible

19   for suspension of deportation.      Because Reefer has not

20   shown she was eligible for any form of relief sought, she is

21   unable to show any prejudice and therefore is unable to show

22   the ineffective assistance of counsel needed to extend the


                                     4
 1   time for filing her motion to reopen.     Rashid, 533 F.3d at

 2   130-31; Rabiu, 41 F.3d at 882.

 3       For the foregoing reasons, the petition for review is

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

 5   removal that the Court previously granted is VACATED, and

 6   any pending motion for a stay of removal is DISMISSED as

 7   moot.     Any pending request for oral argument in this

 8   petition is DENIED in accordance with Federal Rule of

 9   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

10   34.1(b).

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




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