         11-3608
         Noreu v. Holder
                                                                                         BIA
                                                                                 A079 297 735
                             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 6th day of June, two thousand twelve.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                ROBERT A. KATZMANN,
 9                RICHARD C. WESLEY,
10                     Circuit Judges.
11       _________________________________________
12
13       SHPETIM NOREU, AKA SHPETIM BAJRAM NDREU,
14
15                         Petitioner,
16
17                         v.                                      11-3608
18                                                                 NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21
22                Respondent.
23       _________________________________________
24
25       FOR PETITIONER:                  Nathan Weill, New York, NY.
26
27       FOR RESPONDENT:                  Stuart F. Delery, Acting Assistant
28                                        Attorney General; Susan K. Houser,
29                                        Senior Litigation Counsel; Dawn S.
30                                        Conrad, Trial Attorney, Office of
31                                        Immigration Litigation, United
32                                        States Department of Justice,
33                                        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 Shpetim Noreu, a native and citizen of

 6   Albania, seeks review of an August 15, 2011, order of the

 7   BIA denying his motion to reopen.     In re Shpetim Noreu

 8   a.k.a. Shpetim Bajram Ndreu, No. A079 297 735 (B.I.A. Aug.

 9   15, 2011).    We assume the parties’ familiarity with the

10   underlying facts, procedural history, and issues presented

11   for review.

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

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

14   Cir. 2006)(per curiam).    Aliens seeking to reopen

15   proceedings may file a motion to reopen no later than 90

16   days after the date on which the final administrative

17   decision was rendered.    8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R.

18   § 1003.2(c)(2).    Noreu’s February 2011 motion was untimely

19   because he filed it more than four years after the BIA’s

20   2006 final order of removal.

21       The BIA did not abuse its discretion in declining to

22   equitably toll the time period for filing Noreu’s motion to

23   reopen based on his ineffective assistance of counsel claim.

                                     2
 1   To warrant equitable tolling, a movant must demonstrate that

 2   competent counsel would have acted otherwise and that he was

 3   prejudiced by counsel’s ineffective assistance.     See Rashid

 4   v. Mukasey, 533 F.3d 127, 130-31 (2d Cir. 2008).     Even

 5   assuming that a movant demonstrates that prior counsel was

 6   ineffective and that he was prejudiced, the movant is

 7   required to demonstrate “due diligence” in pursuing his

 8   claim.   See id. at 131; see also Cekic v. INS, 435 F.3d 167,

 9   170 (2d Cir. 2006).

10       The BIA did not err in determining that Noreu failed to

11   demonstrate that his former counsel’s representation had

12   prejudiced him.    In order to show that actual prejudice

13   resulted from counsel’s failure to pursue certain

14   initiatives, the movant “must make a prima facie showing

15   that he would have been eligible for the relief and that he

16   could have made a strong showing in support of his

17   application.”     Rabiu v. INS, 41 F.3d 879, 882 (2d Cir.

18   1994).   Noreu asserts that he was prejudiced by his former

19   counsel’s failure to either notify him of prior decisions of

20   this Court reprimanding the IJ who conducted his proceedings

21   or argue that the IJ’s inappropriate conduct may have

22   infected the decision to deny him humanitarian asylum.

23   Noreu’s counsel, however, clearly raised such arguments on

                                     3
 1   appeal to the BIA and in his prior petition for review to

 2   this Court.    Importantly, in a 2007 decision, we reviewed

 3   Noreu’s assertion that the IJ’s conduct demonstrated bias

 4   and found that any potentially inappropriate conduct by the

 5   IJ had not caused Noreu prejudice because the agency had

 6   reasonably concluded that he was not entitled to

 7   humanitarian asylum.     See Noreu v. Gonzales, 212 F. App’x

 8   55, 57 (2d Cir. 2007).    That determination remains the law

 9   of the case.     See Johnson v. Holder, 564 F.3d. 95, 99 (2d

10   Cir. 2009).    Moreover, the fact that we subsequently issued

11   an unpublished decision discussing the IJ’s inappropriate

12   conduct in other cases does not alter our determination

13   because we had previously rendered at least one precedential

14   opinion discussing the IJ’s inappropriate behavior.     See

15   Mahamed Ayenul Islam v. Gonzales, 469 F.3d 53, 55-57 (2d

16   Cir. 2006).    Therefore, the BIA did not err in concluding

17   that Noreu failed to demonstrate that he was prejudiced by

18   his former counsel’s actions.

19       Further, the BIA did not abuse its discretion in

20   finding that Noreu failed to demonstrate that he exercised

21   due diligence in pursuing his ineffective assistance of

22   counsel claim.    A movant seeking equitable tolling based on


                                     4
 1   the ineffective assistance of counsel has the burden of

 2   demonstrating that he exercised due diligence during “both

 3   the period of time before the ineffective assistance of

 4   counsel was or should have been discovered and the period

 5   from that point until the motion to reopen is filed.”

 6   Rashid, 533 F.3d at 132.   As the BIA found, Noreu failed to

 7   demonstrate due diligence because he did not explain what

 8   actions he took to pursue his case in the four years between

 9   our 2007 decision denying his petition for review and the

10   hiring of his current attorney in 2011.    See id.

11       For the foregoing reasons, the petition for review is

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

13   removal that the Court previously granted in this petition

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

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

16   oral argument in this petition is DENIED in accordance with

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

18   Circuit Local Rule 34.1(b).

19                                 FOR THE COURT:
20                                 Catherine O’Hagan Wolfe, Clerk
21
22




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