         10-3976-ag
         Iqbal v. Holder
                                                                                         BIA
                                                                                 A090 671 531
                            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 17th day of April, two thousand twelve.
 5
 6       PRESENT:
 7                PIERRE N. LEVAL,
 8                DEBRA ANN LIVINGSTON,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       ZAFAR IQBAL,
14                Petitioner,
15
16                         v.                                    10-3976-ag
17                                                               NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                Parker Waggaman, Woodside, New York.
24
25       FOR RESPONDENT:                Tony West, Assistant Attorney
26                                      General; M. Jocelyn Lopez Wright,
27                                      Senior Litigation Counsel; Kelly J.
28                                      Walls, Trial Attorney, Office of
29                                      Immigration Litigation, United
30                                      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 Zafar Iqbal, a native and citizen of

 6   Pakistan, seeks review of the September 3, 2010, order of

 7   the BIA denying his motion to reopen.   In re Zafar Iqbal,

 8   No. A090 671 531 (B.I.A. Sept. 3, 2010).   We assume the

 9   parties’ familiarity with the underlying facts and

10   procedural history of the case.

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

12   untimely was not an abuse of discretion.   See Kaur v. BIA,

13   413 F.3d 232, 233 (2d Cir. 2005) (per curiam).   A motion to

14   reopen generally must be filed no later than 90 days after

15   the date on which the final administrative decision was

16   rendered in the proceedings sought to be reopened.

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

18   There is no dispute that Iqbal’s 2010 motion was untimely,

19   as the final administrative order was issued in 2002.      See 8

20   U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).     The

21   time limitation does not apply to a motion to reopen if it

22   is “based on changed circumstances arising in the country of


                                  2
 1   nationality or in the country to which deportation has been

 2   ordered, if such evidence is material and was not available

 3   and could not have been discovered or presented at the

 4   previous hearing,” 8 C.F.R. § 1003.2(c)(3)(ii); see also

 5   8 U.S.C. § 1229a(c)(7)(C)(ii), or on an ineffective

 6   assistance of counsel claim, Rashid v. Mukasey, 533 F.3d

 7   127, 130-31 (2d Cir. 2008).   However, Iqbal failed to

 8   demonstrate that his motion fell within either exception.

 9       We decline to consider Iqbal’s new ineffective

10   assistance of counsel claim because he failed to exhaust

11   that issue before the BIA.    See Lin Zhong v. U.S. Dep’t of

12   Justice, 480 F.3d 104, 119-24 (2d Cir. 2007); Yi Long Yang

13   v. Gonzales, 478 F.3d 133, 142 (2d Cir. 2007).    Moreover,

14   contrary to Iqbal’s argument, the BIA did not abuse its

15   discretion by summarily concluding that Iqbal did not

16   demonstrate materially changed conditions in Pakistan given

17   that he did not assert that conditions had worsened and did

18   not submit evidence regarding the treatment of gay men in

19   Pakistan at the time he filed his motion to reopen.      See Wei

20   Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006).

21   Furthermore, the BIA reasonably declined to consider Iqbal’s

22   factual claims based on his homosexuality as the agency had


                                    3
 1   already found those claims to be not credible.     See Kaur,

 2   413 F.3d at 234 (holding that BIA did not abuse its

 3   discretion in denying a motion to reopen when a grant of

 4   relief would still be precluded due to a prior adverse

 5   credibility determination).

 6       Iqbal also contends that his eligibility to adjust his

 7   immigration status to that of a lawful permanent resident

 8   warranted reopening.   However, an alien’s eligibility to

 9   adjust his immigration status is not a recognized exception

10   to the time limitation imposed on motions to reopen.

11   See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.

12   § 1003.2(c)(3)(ii).

13       Because Iqbal failed to demonstrate that his motion

14   fell within an exception to the time limitation, the BIA did

15   not abuse its discretion in denying his motion as untimely.

16   See 8 U.S.C. § 1229a(c)(7)(C)(i), (ii); 8 C.F.R.

17   § 1003.2(c)(2), (3).

18       For the foregoing reasons, the petition for review is

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

20   removal that the Court previously granted in this petition

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

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

                                   4
1   oral argument in this petition is DENIED in accordance with

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

3   Circuit Local Rule 34.1(b).

4                                 FOR THE COURT:
5                                 Catherine O’Hagan Wolfe, Clerk
6




                                   5
