    12-1629
    Lecaj v. Holder
                                                                                  BIA
                                                                          A099 075 388
                       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.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 20th day of June, two thousand fourteen.

    PRESENT:
             REENA RAGGI,
             GERARD E. LYNCH,
             RAYMOND J. LOHIER, JR.,
                  Circuit Judges.
    _____________________________________

    FATMIR LECAJ,
             Petitioner,

                      v.                                   12-1629
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               Thomas E. Moseley, Newark, New Jersey.

    FOR RESPONDENT:               Stuart F. Delery, Principal Deputy
                                  Assistant Attorney General; Shelley R.
                                  Goad, Assistant Director; Katharine E.
                                  Clark, Trial Attorney, Office of
                                  Immigration     Litigation,     Civil
                                  Division, United States Department of
                                  Justice, Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

decision of the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is DENIED.

    Fatmir Lecaj, a native and citizen of Montenegro, whose

petition for asylum based on feared religious, political, and

ethnic persecution was denied, see Lecaj v. Holder, 616 F.3d

111 (2d Cir. 2010), now seeks review of an April 3, 2012 order

of the BIA denying his motion to reopen.              In re Fatmir Lecaj,

No. A099 075 388 (B.I.A. Apr. 3, 2012).                   We assume the

parties’ familiarity with the underlying facts and procedural

history in this case, which we discuss only as necessary to

explain   why   we   identify   no       abuse   of   discretion   in   the

challenged denial.

    Mindful of the Supreme Court’s admonition that motions to

reopen asylum proceedings are “disfavored,” INS v. Doherty,

502 U.S. 314, 322-23 (1992), we review the denial of such

motions only for abuse of discretion, Ali v. Gonzales, 448

F.3d 515, 517 (2d Cir. 2006). Lecaj’s motion to reopen, filed

in November 2011, was plainly untimely, given that his order

of removal became final in January 2009, and the law expects

that motions to reopen will be filed no later than 90 days

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thereafter.         See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.

§ 1003.2(c)(2).         Lecaj does not dispute this chronology.

Rather, he faults the BIA’s failure equitably to toll the

filing period based on claimed ineffective representation.

Specifically, he challenges the BIA’s finding that he failed

to demonstrate the prejudice or diligence necessary to secure

equitable tolling for that reason.               See Rabiu v. INS, 41 F.3d

879, 882 (2d Cir. 1994) (requiring prejudice); see also Rashid

v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008) (requiring due

diligence     during    “both   the       period    of    time     before    the

ineffective assistance of counsel was or should have been

discovered and the period from that point until the motion to

reopen is filed”).

       The due diligence requirement contemplates “a two-step

inquiry      that    first   evaluates      reasonableness         under     the

circumstances—namely,        whether       and     when    the     ineffective

assistance was or should have been discovered by a reasonable

person in the situation”—and, second, expects                    petitioner to

show    he   acted   diligently   in      pursuing       reopening    once    he

discovered the purported ineffectiveness.                  Jian Hua Wang v.

BIA, 508 F.3d 710, 715 (2d Cir. 2007) (internal quotation

marks and citation omitted). In this case, the BIA reasonably



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identified the discovery date as December 2010, when the

mandate of this court issued in Lecaj v. Holder, 616 F.3d at

117-19, wherein we made clear that Lecaj had failed to submit

the evidence necessary to overcome agency findings of changed

country conditions.

    The BIA acted within its discretion in finding that Lecaj

failed to demonstrate the due diligence required to toll the

eleven months between the December 2010 mandate and his

November 2011 filing of a motion to reopen.         Insofar as the

de-accreditation of Lecaj’s representative did not become

public until July 2011, Lecaj failed to articulate before the

BIA why that fact was necessary to his own awareness of

ineffective assistance in the failure to present evidence,

including testimony from his own sister, relevant to the issue

of changed country conditions.        Because Lecaj thus failed to

demonstrate that July 2011 was the earliest date he should

have known of the ineffective assistance, or to articulate any

other reason excusing his failure to file before November

2011, the BIA did not abuse its discretion in finding that he

failed   to   demonstrate   the   due   diligence   necessary   for

equitable tolling.    See Jian Hua Wang, 508 F.3d at 715.

    Nor do we identify any abuse of discretion in the BIA’s


                                  4
finding that Lecaj failed to demonstrate prejudice given that

he attributed ineffectiveness only to his counsel of record,

a BIA “accredited representative,” and not to the attorney who

actually appeared on his behalf at his asylum hearing.                That

conclusion is only reinforced by Lecaj’s failure to present

the Board with anything more than conclusory assertions that

testimony from his sister and an unidentified expert would

have resulted in his procurement of asylum. See Rabiu v. INS,

41 F.3d at 882–83.

    For the foregoing reasons, the petition for review is

DENIED.    The    pending      request   for   oral   argument   in   this

petition   is    DENIED   in    accordance     with   Federal    Rule   of

Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

                     FOR THE COURT:
                     Catherine O’Hagan Wolfe, Clerk of Court




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