         10-3768-ag
         Desilva v. Holder
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A075 807 845


                              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 5th day of October, two thousand eleven.
 5
 6       PRESENT:
 7                JOSEPH M. MCLAUGHLIN,
 8                GUIDO CALABRESI,
 9                RICHARD C. WESLEY,
10                        Circuit Judges.
11       _______________________________________
12
13       DEPACHARIGE PREMARATNA DESILVA,
14                Petitioner,
15
16                           v.                                 10-3768-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Visuvanathan Rudrakumaran, New York,
24                                     New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Jennifer L. Lightbody,
28                                     Senior Litigation Counsel; Stefanie
29                                     A. Svoren, Trial Attorney, Office of
 1                            Immigration Litigation, Civil
 2                            Division, United States Department
 3                            of Justice, Washington, D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

 6   Board of Immigration Appeals (“BIA”) decision, it is hereby
 7   ORDERED, ADJUDGED, AND DECREED that the petition for review
 8   is DENIED.
 9       Depacharige Premaratna Desilva, a native and citizen of
10   Sri Lanka, seeks review of an August 23, 2010, order of the

11   BIA affirming the June 15, 2010, decision of Immigration
12   Judge (“IJ”) Alan Vomacka denying his motion to reopen his

13   removal proceedings.    In re Depacharige Premaratna Desilva,
14   No. A075 807 845 (B.I.A. Aug. 23, 2010), aff’g No. A075 807

15   845 (Immig. Ct. N.Y. City Aug. 23, 2010).    We assume the
16   parties’ familiarity with the underlying facts and

17   procedural history of the case.

18       We review the agency’s denial of a motion to reopen for
19   abuse of discretion.    See Ali v. Gonzales, 448 F.3d 515, 517

20   (2d Cir. 2006).    Here, the agency did not abuse its
21   discretion by denying Desilva’s motion to reopen as

22   untimely, as he filed it more than one year after his final
23   order of removal, and number-barred, as it was his second

24   motion to reopen.    See 8 U.S.C. § 1229a(c)(7); 8 C.F.R.
25   § 1003.23(b)(1).
26       Although the time and number limits on motions to

27   reopen may be excused when the movant demonstrates changed

                                    2
 1   country conditions, 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.
 2   § 1003.23(b)(4), Desilva failed to argue before the BIA that
 3   there had been changed circumstances in Sri Lanka.

 4   Similarly, although Desilva argues here that the IJ erred in
 5   denying his motion to reopen as a matter of discretion, he

 6   did not raise any such argument to the BIA.   In addition to
 7   the statutory requirement that petitioners exhaust the
 8   categories of relief they seek, 8 U.S.C. § 1252(d)(1),

 9   petitioners must also raise to the BIA the specific issues

10   they later raise in this Court.   See Foster v. INS, 376 F.3d
11   75, 78 (2d Cir. 2004).   While not jurisdictional, this

12   judicially imposed exhaustion requirement is mandatory.     Lin

13   Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d
14   Cir. 2007).   Accordingly, because Desilva failed to

15   challenge the changed conditions finding or discretionary

16   denial in his appeal to the BIA, and because the Government
17   has raised this failure to exhaust, we decline to consider

18   these issues.   See id. at 124 (describing the issue
19   exhaustion requirement as an “affirmative defense subject to
20   waiver.”).

21       Desilva argues, however, that the agency abused its
22   discretion in denying his motion because the time limitation

23   should have been excused based on ineffective assistance of
24   counsel.   The deadline for filing a motion to reopen may be

25   equitably tolled to accommodate claims of ineffective


                                   3
 1   assistance of counsel, so long as the movant has exercised

 2   “due diligence” in vindicating his rights.    Cekic v. INS,
 3   435 F.3d 167, 171 (2d Cir. 2006).    Here, the agency did not

 4   abuse its discretion in determining that Desilva failed to
 5   exercise due diligence.   Although Desilva had knowledge that

 6   the appeal of the denial of his first motion to reopen was
 7   dismissed by the BIA in September 2009, he waited more than
 8   nine months and until he was detained by the Department of

 9   Homeland Security before raising his ineffective assistance

10   of counsel claim, and did not indicate any steps taken to
11   pursue his claim during that time.    See Rashid v. Mukasey,

12   533 F.3d 127, 132 (2d Cir. 2008) (holding that petitioner

13   failed to exercise due diligence when, after he knew or
14   should have known of his counsel’s ineffective assistance,

15   he waited 14 months to further pursue his case); Jian Hua

16   Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007) (holding that
17   waiting eight months after the receipt of relevant documents

18   did not demonstrate due diligence); Cekic, 435 F.3d at 172
19   (denying motion to reopen where petitioners’ “submissions in
20   support of their second motion to reopen fail[ed] to provide

21   even the slightest indication that they took any action to
22   protect themselves.”).

23       For the foregoing reasons, the petition for review is
24   DENIED.   As we have completed our review, any stay of

25   removal that the Court previously granted in this petition

                                   4
1   is VACATED, and any pending motion for a stay of removal in

2   this petition is DISMISSED as moot.    Any pending request for
3   oral argument in this petition is DENIED in accordance with

4   Federal Rule of Appellate Procedure 34(a)(2), and Second
5   Circuit Local Rule 34.1(b).

6                                 FOR THE COURT:
7                                 Catherine O’Hagan Wolfe, Clerk
8
9




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