         12-379
         Shalamberidze v. Holder
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A097 129 785
                                                                               A097 129 786
                                   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 3rd day of September, two thousand thirteen.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                DEBRA ANN LIVINGSTON,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       AVTANDIL SHALAMBERIDZE, MIRANDA
14       GABUNIA,
15                Petitioners,
16
17                           v.                                 12-379
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
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 1   FOR PETITIONER:         Daniel D. Estrin, Brooklyn, New
 2                           York.
 3
 4   FOR RESPONDENT:         Stuart F. Delery, Acting Assistant
 5                           Attorney General; Terri J. Scadron,
 6                           Assistant Director; Manuel A. Palau,
 7                           Trial Attorney, Office of
 8                           Immigration Litigation, United
 9                           States Department of Justice,
10                           Washington, D.C.
11
12       UPON DUE CONSIDERATION of this petition for review of a

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

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

15   is DENIED.

16       Petitioners Avtandil Shalamberidze and Miranda Gabunia,

17   natives of the former U.S.S.R. and citizens of Georgia, seek

18   review of a January 12, 2012, decision of the BIA affirming

19   the July 28, 2010, decision of Immigration Judge (“IJ”) Alan

20   Vomacka denying their motion to reopen.    In re Avtandil

21   Shalamberidze, Miranda Gabunia, No. A097 129 785/786 (B.I.A.

22   Jan. 12, 2012), aff’g No. A097 129 785/786 (Immig. Ct. N.Y.

23   City July 28, 2010).   We assume the parties’ familiarity

24   with the underlying facts and procedural history in this

25   case.

26       We review the BIA’s decision to affirm an IJ’s denial

27   of a motion to reopen for abuse of discretion.    Cekic v.

28   INS, 435 F.3d 167, 170 (2d Cir. 2006).    An alien seeking to

                                   2
 1   reopen proceedings is required to file a motion to reopen no

 2   later than 90 days after the date on which the final

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

 4   § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.23(b)(1).   There is no

 5   dispute that the petitioners’ motion to reopen was untimely

 6   because it was filed over eighteen months after the IJ

 7   ordered them removed in February 2005.

 8       The petitioners contend, however, that the time

 9   limitation should be tolled because their former counsel

10   failed to timely file an appeal of the IJ’s February 2005

11   decision, which constituted ineffective assistance of

12   counsel.   The time limitation for a motion to reopen may be

13   tolled due to ineffective assistance of counsel, provided

14   that the movants: (1) allege facts sufficient to show that

15   competent counsel would have acted otherwise and that they

16   were prejudiced by the ineffective assistance; and

17   (2) establish that they exercised due diligence in pursuing

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

19   Cir. 2008).

20       The IJ did not err in finding that the petitioners did

21   not demonstrate due diligence in pursuing their claim, as

22   they did not adequately explain their delay of seven months


                                   3
 1   between learning of their former counsel’s conduct and

 2   filing their motion to reopen.    See Cekic, 435 F.3d at 171;

 3   Jian Hua Wang v. BIA, 508 F.3d 710, 715-16 (2d Cir. 2007)

 4   (affirming agency’s finding that the petitioner did not

 5   demonstrate due diligence where he did not explain why he

 6   delayed five months between filing a complaint against his

 7   former counsel and filing his motion to reopen).

 8   Petitioners’ argument to the BIA that they needed time to

 9   obtain and review their complete immigration court case file

10   was not raised before the IJ and was not based on previously

11   unavailable evidence, and thus the BIA did not err in

12   declining to consider this argument or remand to the IJ for

13   further fact-finding.   See 8 C.F.R. §§ 1003.1(d)(3)(iv),

14   1003.2(c)(1).   Accordingly, the agency did not abuse its

15   discretion in denying the petitioners’ untimely motion to

16   reopen.

17       For the foregoing reasons, the petition for review is

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

19   removal that the Court previously granted in this petition

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

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

22   oral argument in this petition is DENIED in accordance with


                                   4
1   Federal Rule of Appellate Procedure 34(a)(2) and Second

2   Circuit Local Rule 34.1(b).

3                                 FOR THE COURT:
4                                 Catherine O’Hagan Wolfe, Clerk




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