         10-2136-ag
         Diallo v. Holder
                                                                                       BIA
                                                                               A073 602 548
                             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 27th day of April, two thousand eleven.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                JOSEPH M. McLAUGHLIN,
 9                ROBERT A. KATZMANN,
10                     Circuit Judges.
11       _____________________________________
12
13       FATOU DIALLO,
14                Petitioner,
15                                                              10-2136-ag
16                          v.                                  NAC
17
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Rhoda Sherif, Law Office of Rhoda
24                                     Sherif, San Diego, Cal.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; John S. Hogan, Senior
28                                     Litigation Counsel; Michael C.
29                                     Heyse, Trial Attorney, Office of
30                                     Immigration Litigation, Civil
31                                     Division, United States Department
32                                     of Justice, Washington, D.C.
 1
 2       UPON DUE CONSIDERATION of this petition for review of a

 3   decision of the Board of Immigration Appeals (“BIA”), it is

 4   hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

 5   review is DENIED.

 6       Petitioner Fatou Diallo, a native and citizen of

 7   Senegal, seeks review of a May 4, 2010, order of the BIA

 8   denying her motion to rescind and reissue the BIA’s

 9   September 13, 2004, decision dismissing her appeal from the

10   February 24, 2004, decision of an immigration judge denying

11   her motion to reopen her in absentia deportation

12   proceedings.     In re Fatou Diallo, No. A073 602 548 (B.I.A.

13   May 4, 2010).    We assume the parties’ familiarity with the

14   underlying facts and procedural history of the case.

15       We treat a motion to reissue as a motion to reopen, and

16   review the agency’s denial of such a motion for abuse of

17   discretion.     See Ping Chen v. U.S. Att’y Gen., 502 F.3d 73,

18   75 (2d Cir. 2007) (per curiam).     In her motion, Diallo

19   requested that the BIA rescind and reissue a prior decision

20   so that she could file a timely petition for review in this

21   Court, alleging that prior counsel had been ineffective

22   because he failed to file such a petition.     In order to

23   prevail on a claim of ineffective assistance of counsel, a

24   movant must demonstrate, among other requirements, that she

25   exercised “due diligence” in vindicating her rights, Cekic

                                     2
 1   v. INS, 435 F.3d 167, 171 (2d Cir. 2006), "during the entire

 2   period [she] seeks to toll . . . [including] both the period

 3   of time before the ineffective assistance of counsel was or

 4   should have been discovered and the period from that point

 5   until the motion to reopen is filed,” Rashid v. Mukasey, 533

 6   F.3d 127, 132 (2d Cir. 2008).

 7       Here, the BIA did not abuse its discretion in

 8   determining that Diallo failed to demonstrate that she

 9   exercised due diligence.   Although Diallo had knowledge of

10   her final order of removal in September 2004, and of the

11   denial of a motion to reconsider as early as May or June

12   2006, she waited an additional three and a half years, until

13   February 2010, to file her motion to rescind and reissue.

14   Moreover, Diallo did not specify when she learned of the

15   alleged ineffective assistance, what steps she took prior to

16   learning of the ineffective assistance, or how much time

17   passed after she learned of the ineffectiveness before she

18   filed her motion.   See id. (petitioner failed to exercise

19   due diligence by waiting to pursue his case until fourteen

20   months after he knew or should have known of counsel’s

21   alleged ineffective assistance); Jian Hua Wang v. BIA, 508

22   F.3d 710, 715 (2d Cir. 2007) (per curiam) (waiting 8 months

23   after the receipt of documents pertinent to petitioner’s

24   claim to file a motion to reopen did not demonstrate due


                                     3
 1   diligence).

 2       Given that the BIA did not abuse its discretion in

 3   determining that Diallo failed to demonstrate due diligence,

 4   we do not consider her arguments that the agency erred in

 5   determining that she failed to meet the requirements of

 6   Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988), or that

 7   she failed to demonstrate prejudice by counsel’s failure to

 8   file a petition for review.    See Cekic, 435 F.3d at 170

 9   (“[N]o matter how egregiously ineffective counsel's

10   assistance may have been, an alien will not be entitled to

11   equitable tolling unless he can affirmatively demonstrate

12   that he exercised reasonable due diligence during the time

13   period sought to be tolled.”).

14       For the foregoing reasons, the petition for review is

15   DENIED.   As we have completed our review, any pending motion

16   for a stay of removal in this petition is DISMISSED as moot.

17   Any pending request for oral argument in this petition is

18   DENIED in accordance with Federal Rule of Appellate

19   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

20                                 FOR THE COURT:
21                                 Catherine O’Hagan Wolfe, Clerk
22




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