                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0216n.06

                                           No. 12-3194
                                                                                        FILED
                          UNITED STATES COURT OF APPEALS                            Mar 01, 2013
                               FOR THE SIXTH CIRCUIT                          DEBORAH S. HUNT, Clerk

ESTHER DADA,                                         )
                                                     )
       Petitioner,                                   )
                                                     )
v.                                                   )       ON PETITION FOR REVIEW
                                                     )       FROM THE UNITED STATES
ERIC H. HOLDER, JR., Attorney General,               )       BOARD OF IMMIGRATION
                                                     )       APPEALS
       Respondent.                                   )
                                                     )




       BEFORE: GIBBONS, KETHLEDGE, and STRANCH, Circuit Judges.


       PER CURIAM. Esther Dada petitions for review of an order of the Board of Immigration

Appeals (BIA) denying her motion to reopen her removal proceedings. We deny the petition.

       Dada, a native and citizen of Nigeria, entered the United States on April 23, 1988 as a non-

immigrant visitor with authorization to remain for a temporary period. On September 11, 1998, the

Immigration and Naturalization Service (INS) initiated removal proceedings against Dada by serving

her with a notice to appear, charging her with removability under Section 237(a)(1)(B) of the

Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(B), as a non-immigrant who has remained

in the United States for a time longer than permitted. On April 23, 1999, Dada appeared before an

immigration judge (IJ), admitted the factual allegations contained in the notice to appear, conceded

removability as charged, and requested relief in the form of cancellation of removal. Rather than

filing an application for cancellation of removal, Dada’s counsel filed an application for suspension
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Dada v. Holder

of deportation. The government subsequently moved to pretermit Dada’s request for cancellation

of removal as abandoned because no application had been filed.

        On March 31, 2000, Dada married a United States citizen, who filed a petition for alien

relative, Form I-130, on her behalf. When Dada next appeared before the immigration court, the IJ

granted a continuance based on the pending Form I-130 and ordered her to file the correct application

for relief before the merits hearing. On May 20, 2003, the INS subsequently denied the Form I-130,

concluding that Dada’s marriage was a sham.

        At the merits hearing on November 18, 2003, the IJ noted that Dada had neither responded

to the government’s motion to pretermit nor filed the appropriate application for relief. The IJ

denied counsel’s request to file an application for cancellation of removal, stating that failing to file

a response or application in the three-and-a-half years since the filing of the government’s motion

was “inexcusable.” In an oral decision denying relief and ordering Dada’s removal to Nigeria, the

IJ found that her request for cancellation of removal was abandoned and that she was ineligible for

voluntary departure.

        Dada retained new counsel the following month, who filed a timely notice of appeal asserting

ineffective assistance of counsel but failed to file a brief or motion to reopen. The BIA summarily

affirmed the IJ’s decision on December 15, 2004.

        In the spring of 2011, Dada consulted with her current counsel, who requested her file from

the immigration court. Dada learned then that her 2003 appeal had been dismissed, that her second

attorney had not filed a brief or a motion to reopen, and that the attorney was not an active member

of any state bar. On September 26, 2011, Dada’s current counsel filed a motion to reopen based on

ineffective assistance of counsel. The BIA denied the motion to reopen as untimely filed, declining

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to equitably toll the limitations period because Dada (1) failed to establish prejudice by her counsel’s

performance and (2) failed to act with due diligence. Dada timely petitioned for review of the BIA’s

order.

         We review the BIA’s denial of a motion to reopen for abuse of discretion. Acquaah v.

Holder, 589 F.3d 332, 334 (6th Cir. 2009). We review the BIA’s legal determinations de novo and

its factual findings for substantial evidence, reversing only if “‘any reasonable adjudicator would be

compelled to conclude to the contrary.’” Mezo v. Holder, 615 F.3d 616, 620 (6th Cir. 2010) (quoting

8 U.S.C. § 1252(b)(4)(B) and Singh v. Gonzales, 451 F.3d 400, 403 (6th Cir. 2006)).

         A motion to reopen must be filed within ninety days of a final order of removal. 8 U.S.C.

§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Where, as here, “an alien seeks to reopen a time-barred

motion, the doctrine of equitable tolling may be applied to permit reopening when the alien

demonstrates that she received ineffective assistance of counsel and was prejudiced thereby.” Mezo,

615 F.3d at 620. “In past cases, we have declined to equitably toll the time period for filing motions

to reopen for two reasons: (1) where the petitioner failed to establish prejudice from former

counsel’s untimely appeal; and (2) where the petitioner failed to exercise diligence in pursuing his

rights.” Id. (citations omitted).

         Dada argues that the BIA erred in failing to address whether her counsel was ineffective,

instead addressing only prejudice. In cases involving the right to effective assistance of counsel

under the Sixth Amendment, a court need not address both the performance and prejudice

components of the ineffectiveness inquiry if there is an insufficient showing on one. Strickland v.

Washington, 466 U.S. 668, 697 (1984). Although ineffective assistance of counsel claims in the

immigration context derive from the Fifth Amendment’s guarantee of due process, not from the

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Sixth Amendment, Sako v. Gonzales, 434 F.3d 857, 859 (6th Cir. 2006), the same principle applies.

See, e.g., Allabani v. Gonzales, 402 F.3d 668, 677–78 (6th Cir. 2005) (considering only whether

petitioner was prejudiced by counsel’s performance, not whether that performance was deficient, in

affirming BIA’s denial of petitioner’s motion to reopen based on ineffective assistance of counsel).

       To show prejudice, a petitioner “must establish that, but for the ineffective assistance of

counsel, he would have been entitled to continue residing in the United States.” Sako, 434 F.3d at

864. Dada contends that the BIA erred in applying this prejudice standard and that the proper

standard requires merely a prima facie showing of eligibility for relief. Dada failed to establish

eligibility for cancellation of removal under either standard.

       To be eligible for cancellation of removal, an alien must have been “a person of good moral

character” during the ten-year period immediately preceding the alien’s application. 8 U.S.C.

§ 1229b(b)(1)(B). Dada ignores the evidence that she entered into a sham marriage, which

precludes her from establishing good moral character. See Ali v. Ashcroft, 366 F.3d 407, 412 (6th

Cir. 2004). An alien seeking cancellation of removal must also establish “that removal would result

in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen

of the United States or an alien lawfully admitted for permanent residence.”                 8 U.S.C.

§ 1229b(b)(1)(D). As the BIA noted, Dada’s motion to reopen did not identify a qualifying relative

or address that relative’s hardship. In the application for cancellation of removal attached to her

motion to reopen, Dada indicated that her removal would result in exceptional and extremely unusual

hardship to her United States citizen daughter, but she did not allege any facts or present any

evidence in support of that claim. The BIA properly determined that Dada failed to demonstrate

eligibility for cancellation of removal and therefore failed to establish prejudice.

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          The BIA also found that Dada failed to establish due diligence. We agree. “Due diligence

requires an alien to prove that the delay in filing the motion to reopen was due to an exceptional

circumstance beyond his control.” Tapia-Martinez v. Gonzales, 482 F.3d 417, 423 (6th Cir. 2007)

(internal quotation marks omitted). According to her affidavit, Dada never heard from her second

attorney after he filed a notice of appeal with the BIA in December 2003. Dada asserted that she

went to his office, which had been vacated, and that she had no way to contact him. Dada’s affidavit

provided no explanation for why she waited more than seven years to consult with another attorney.

In her answer to the government’s response to her motion to reopen, Dada asserted that she “was

fearful to do anything and did not know if she could do anything, and mainly did not know where

to turn for help.” Dada’s failure to take any action to pursue her legal rights for more than seven

years supports the BIA’s determination that she was not diligent. See Carroll v. Holder, 310

F. App’x 763, 765–66 (6th Cir. 2009).

          For the foregoing reasons, the BIA did not abuse its discretion in denying Dada’s motion to

reopen as untimely and declining to apply equitable tolling. Accordingly, we deny the petition for

review.




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