09-4398-ag
Sidibe v. Holder
                                                                                     BIA
                                                                             A073 574 512
                        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 Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 25th day of October, two thousand ten.

PRESENT:
         DENNIS JACOBS,
              Chief Judge,
         JON O. NEWMAN,
         GERARD E. LYNCH,
              Circuit Judges.
_______________________________________

ADAMA SIDIBE,
         Petitioner,

                   v.                                                   09-4398-ag
                                                                               NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
_______________________________________

FOR PETITIONER:                Randall L. Johnson, Arlington, Virginia.

FOR RESPONDENT:                Tony West, Assistant Attorney General;
                               William C. Peachey, Assistant Director;
                               Rebecca Hoffberg, Trial Attorney, Office
                               of Immigration Litigation, United States
                               Department of Justice, Washington, D.C.
     UPON DUE CONSIDERATION of this petition for review of a Board

of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,

ADJUDGED, AND DECREED, that the petition for review is DENIED in

part and DISMISSED in part.

     Adama Sidibe, a native and citizen of the Republic of Mali,

seeks review of a September 24, 2009, order of the BIA denying his

motion to reconsider its January 26, 2009, order denying as

untimely his motion to reopen.         In re Adama Sidibe, No. A073 574

512 (B.I.A. Sept. 24, 2009).      We assume the parties’ familiarity

with the underlying facts and procedural history in this case.

     We review the agency’s denial of a motion to reconsider for

abuse of discretion.     See Jin Ming Liu v. Gonzales, 439 F.3d 109,

111 (2d Cir. 2006).

I.   Ineffective Assistance of Counsel

     As he argued in his motion to reconsider, Sidibe argues here

that the BIA abused its discretion in declining to equitably toll

the filing deadline for his August 2008 motion to reopen, in which

he alleged the ineffective assistance of his prior counsel.             We

are not persuaded. Sidibe’s August 2008 motion to reopen was

indisputably untimely, having been filed twelve years after the

IJ’s August 1996 in absentia deportation order, well outside the

ninety day period for filing motions to reopen and the 180 day

period   for   filing   motions   to   rescind   the   IJ’s   in   absentia

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deportation order based on exceptional circumstances.                    See 8

U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2); see also 8

C.F.R. § 1003.23(b)(4)(iii)(A)(1).

    We have recognized that equitable tolling of the time period

for filing motions based on ineffective assistance of counsel may

sometimes be available. See Rashid v. Mukasey, 533 F.3d 127, 130-

32 (2d Cir. 2008)(finding that, in order to warrant equitable

tolling, an alien is required to demonstrate “due diligence” in

pursuing his claims 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”); Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d

Cir. 2007).

    Here, the BIA did not abuse its discretion in determining

that Sidibe failed to demonstrate that he exercised due diligence.

Sidibe waited nearly three and one-half years after the BIA’s

February 2005 denial of his appeal–the time at which his prior

counsel’s purported ineffectiveness should have reasonably become

apparent–to   file   his   August   2008    motion      to   reopen   alleging

ineffective assistance of counsel.         See id. Sidibe’s explanations

for his delay are unavailing.       Even if we were to credit Sidibe’s

argument that he did not receive the BIA’s February 2005 decision,


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the BIA did not err in finding that he failed to demonstrate that

he exercised due diligence when he waited more than two years

after retaining new counsel in May 2006, and seven months after

obtaining the record of proceedings, to file his August 2008

motion.   See id.   Accordingly, we deny the petition for review to

this extent.

II. Adjustment of Status Eligibility

    Given the untimely filing of Sidibe’s August 2008 motion to

reopen, 8 C.F.R. § 1003.2(c)(2), the BIA did not abuse its

discretion in determining that his eligibility to adjust status

based on an approved I-130 petition did not excuse the untimely

filing of his motion. See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also

Matter of Yauri, 25 I. & N. Dec. 103, 105 (BIA 2009).    Moreover,

we lack jurisdiction to consider the BIA’s decision not to reopen

his proceedings sua sponte based on his eligibility to adjust

status, and we therefore dismiss his petition for review to the

extent that it challenges this determination.    See Azmond Ali v.

Gonzales, 448 F.3d 515, 518 (2d Cir. 2006).

III. Rescission of In Absentia Deportation Order

    Sidibe also asserts that the BIA abused its discretion in

failing to consider his argument that he was deprived of a

reasonable opportunity to challenge the validity of the IJ’s in


                                 -4-
absentia deportation order.   However, because Sidibe never raised

such an argument in his motion to reconsider, the BIA did not

abuse its discretion by failing to consider it, and we deny the

petition for review to this extent.    See Sukhraj Kaur v. BIA, 413

F.3d 232, 233-34 (2d Cir. 2005).

    For the foregoing reasons, the petition for review is DENIED

in part and DISMISSED in part.    As we have completed our review,

any stay of removal that the Court previously granted in this

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

in this petition is DISMISSED as moot. Any 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




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