         09-1757-ag
         Bah v. Holder
                                                                                        BIA
                                                                               A 097 847 391
                          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 21 st day of April, two thousand ten.
 5
 6       PRESENT:
 7                BARRINGTON D. PARKER,
 8                RICHARD C. WESLEY,
 9                DEBRA ANN LIVINGSTON,
10                        Circuit Judges.
11       ______________________________________
12
13       MAMADOU ALIOU BAH,
14                Petitioner,
15                                                              09-1757-ag
16                       v.                                     NAC
17
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Pro se.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General, Civil Division; Jennifer L.
27                                     Lightbody, Senior Litigation
28                                     Counsel; Robbin K. Blaya, Trial
29                                     Attorney, Office of Immigration
30                                     Litigation, Civil Division, United
31                                     States Department of Justice,
32                                     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, Mamadou Aliou Bah, a native and citizen of

6    Guinea, seeks review of an April 1, 2009, order of the BIA

7    denying his motion to reopen and reconsider.   In re Mamadou

8    Aliou Bah, No. A 097 847 391 (B.I.A. Apr. 1, 2009).     We

9    assume the parties’ familiarity with the underlying facts

10   and procedural history of the case.

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

12   abuse of discretion.   Ali v. Gonzales, 448 F.3d 515, 517 (2d

13   Cir. 2006).   An alien may only file one motion to reopen and

14   must do so within 90 days of the agency’s final

15   administrative decision.   8 C.F.R. § 1003.2(c)(2).   However,

16   the deadline may be equitably tolled to accommodate claims

17   of ineffective assistance of counsel, so long as the movant

18   has exercised “due diligence” in vindicating his or her

19   rights.   See Cekic v. INS, 435 F.3d 167, 171 (2d Cir. 2006).

20       The BIA did not err in finding that Bah failed to

21   exercise due diligence in pursuing his ineffective

22   assistance of counsel claim, an independent basis for



                                   2
1    denying his motion to reopen. See Rabiu v. INS, 41 F.3d 879,

2    882 (2d Cir. 1994); Jian Hua Wang v. BIA, 508 F.3d 710, 715

3    (2d Cir. 2007).   As the BIA observed, when Bah filed his

4    second motion to reopen, he was represented by the same

5    attorney who filed his first.       Under these circumstances, it

6    was neither arbitrary nor capricious for the BIA to find

7    that Bah’s ninety-two day delay in filing a second motion to

8    reopen did not exhibit the type of diligence required for

9    equitable tolling.   See Ke Zhen Zhao v. U.S. Dep’t of

10   Justice, 265 F.3d 83, 93 (2d Cir. 2001).       This is

11   particularly true because an alien has only thirty days to

12   file a motion to reconsider alleging legal or factual error

13   in a prior BIA decision.   See 8 C.F.R. § 1003.2(b)(2).

14   Therefore, to the extent Bah sought in his second motion to

15   reopen to remedy the deficiencies the BIA had identified in

16   denying his first, the BIA could (and arguably should) have

17   construed his motion as a motion to reconsider. 1        See

18   8 C.F.R. § 1003.2(b)(1); see also Jie Chen v. Gonzales, 436

19   F.3d 76, 78-79 & n.5 (2d Cir. 2006) (holding that the BIA

20   must construe motions as motions to reopen or reconsider

            1
             Had the BIA done so, the motion would properly have
       been denied as untimely. 8 C.F.R. § 1003.2(b)(2). There
       are no exceptions to the filing deadline for motions to
       reconsider.

                                     3
1    depending not just on their captions but also on their

2    substance).

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 in this petition

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

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

8    oral argument in this petition is DENIED in accordance with

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

10   Circuit Local Rule 34.1(b).

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

13




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