         10-4032-ag
         Palomino-Alzamora v. Holder
                                                                                         BIA
                                                                                A096 679 485
                                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 22nd day of February, two thousand twelve.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                RICHARD C. WESLEY,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _______________________________________
12
13       SUSANA PALOMINO-ALZAMORA,
14                Petitioner,
15
16                          v.                                   10-4032-ag
17                                                               NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                 H. Raymond Fasano, Youman, Madeo &
24                                       Fasano, LLP, New York, NY.
25
26       FOR RESPONDENT:                 Tony West, Assistant Attorney
27                                       General; John S. Hogan, Senior
28                                       Litigation Counsel, Aimee J.
29                                       Frederickson, Trial Attorney, Office
30                                       of Immigration Litigation, 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       Susana Palomino-Alzamora, a native of Peru and a

 6   citizen of Spain, seeks review of a September 8, 2010,

 7   decision of the BIA denying her motion to reopen and

 8   reconsider.     In re Susana Palomino-Alzamora, No. A096 679

 9   485 (B.I.A. Sept. 8, 2010).    We assume the parties’

10   familiarity with the underlying facts and procedural history

11   in this case.    We review the BIA’s denial of a motion to

12   reopen or reconsider for abuse of discretion.     See Jin Ming

13   Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006); Kaur v.

14   BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam).

15       The BIA did not abuse its discretion in denying

16   Palomino-Alzamora’s motion to reopen and reconsider. “A

17   motion to reconsider shall state the reasons for the motion

18   by specifying the errors of fact or law in the prior [BIA]

19   decision . . . [and] must be filed with the [BIA] within 30

20   days after the mailing of the [BIA] decision.”    8 C.F.R.

21   § 1003.2(b); see also 8 U.S.C. § 1229a(c)(6)(B), (C).

22   Palomino-Alzamora’s motion to reconsider was untimely, as it

23   was filed 81 days after the BIA’s decision was mailed.

                                     2
 1   Moreover, she did not demonstrate the requisite prejudice

 2   necessary to toll the filing period based on ineffective

 3   assistance of counsel.    See Rashid v. Mukasey, 533 F.3d 127,

 4   130-31 (2d Cir. 2008); Rabiu v. INS, 41 F.3d 879, 882 (2d

 5   Cir. 1994).    Thus, in her motion to reconsider, Palomino-

 6   Alzamora argued that the BIA erred by affirming an

 7   immigration judge’s (“IJ”) denial of adjustment of status

 8   because the IJ did not have the authority to go beyond the

 9   approved I-130 petition and find that her marriage was not

10   bona fide.    Because Palomino-Alzamora made the same argument

11   in her initial appeal to the BIA, and the BIA rejected that

12   argument, the BIA was not required to reconsider it even had

13   the motion been timely filed.       See Jin Ming Liu, 439 F.3d at

14   111 (the BIA does not abuse its discretion by denying a

15   motion to reconsider that merely repeats arguments that the

16   BIA has previously rejected).       Because Palomino-Alzamora did

17   not identify any other putative error of law or fact in the

18   BIA’s initial decision, she failed to show that she was

19   prejudiced by her prior attorney’s failure to timely file

20   the motion to reconsider.    Accordingly, the BIA did not

21   abuse its discretion in denying her motion to reconsider.

22   See 8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R. § 1003.2(b)(1);


                                     3
 1   Rabiu, 41 F.3d at 882 (to demonstrate prejudice, an

 2   applicant “must make a prima facie showing that he would

 3   have been eligible for the relief [sought]”).

 4       To the extent that Palomino-Alzamora sought reopening,

 5   rather than reconsideration, her motion was timely.      See

 6   8 U.S.C. § 1229a(c)(7)(C).   However, a “motion to reopen

 7   proceedings shall not be granted unless it appears to the

 8   [BIA] that evidence sought to be offered is material and was

 9   not available and could not have been discovered or

10   presented at the former hearing.”   See 8 C.F.R.

11   § 1003.2(c)(1); see also 8 U.S.C. § 1229a(c)(7)(B).      As the

12   BIA noted, Palomino-Alzamora did not submit or identify any

13   additional evidence regarding her underlying request for

14   relief from removal.   Consequently, the BIA did not abuse

15   its discretion in denying her motion to reopen. See 8 U.S.C.

16   § 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c)(1); INS v. Abudu, 485

17   U.S. 94, 104-05 (1988).

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
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