         12-2105
         Solano v. Holder
                                                                                       BIA
                                                                               A038 260 329
                             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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 16th day of May, two thousand fourteen.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                ROSEMARY S. POOLER,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       MARCIAL AVILA SOLANO,
14                Petitioner,
15
16                          v.                                  12-2105
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Matthew L. Guadagno, New York, New
24                                     York.
25
26       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
27                                     Attorney General; Douglas E.
28                                     Ginsburg, Assistant Director;
29                                     Matthew B. George, Trial Attorney,
30                                     Office of Immigration Litigation,
31                                     United 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       Petitioner Marcial Avila Solano, a native and citizen

 6   of Honduras, seeks review of an April 25, 2012, decision of

 7   the BIA denying his motion to reopen his removal

 8   proceedings.    In re Marcial Avila Solano, No. A038 260 329

 9   (B.I.A. Apr. 25, 2012).    We assume the parties’ familiarity

10   with the underlying facts and procedural history in this

11   case.

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).    An alien seeking to reopen proceedings is

15   required to file a motion to reopen no later than 90 days

16   after the final administrative decision was rendered, and

17   may file only one such motion.     See 8 U.S.C. §

18   1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).     Since the

19   agency issued a final administrative order of removal in

20   December 2010, Avila Solano’s second motion to reopen, filed

21   in November 2011, was untimely as well as number-barred.

22       Avila Solano contends, however, that the time and

23   number limitations should be waived because his former

                                    2
 1   attorneys provided ineffective assistance by failing to

 2   argue that the petitioner was entitled to relief under

 3   former § 212(c) of the Immigration and Nationality Act

 4   (“INA”) nunc pro tunc, on the ground that the former

 5   Immigration and Naturalization Service (“INS”) had deprived

 6   him of the opportunity to apply for this relief when it

 7   erroneously failed to place him in exclusion proceedings

 8   upon his return from brief pre-1996 trips abroad.

 9       The time and numerical limitations on motions to reopen

10   may be tolled due to ineffective assistance of counsel,

11   provided that the movant demonstrates that counsel’s

12   performance was so ineffective as to have “impinged on the

13   fundamental fairness of the hearing.”   See Jian Yun Zheng v.

14   U.S. Dep’t of Justice, 409 F.3d 43, 46 (2d Cir. 2005)

15   (internal quotation marks and citation omitted).    Such a

16   showing must be supported by facts sufficient to show that

17   competent counsel would have acted otherwise, and that the

18   movant was prejudiced by counsel’s conduct.   See Changxu

19   Jiang v. Mukasey, 522 F.3d 266, 270 (2d Cir. 2008).

20       The BIA did not abuse its discretion by finding that

21   his former counsel was not ineffective; the nunc pro tunc

22   argument was speculative at best.   As the BIA observed,


                                  3
 1   Avila Solano’s nunc pro tunc argument appears inconsistent

 2   with    Restrepo v. McElroy, 369 F.3d 627 (2d Cir. 2004),

 3   which requires that individuals seeking § 212(c) relief

 4   post-repeal who had been convicted at trial demonstrate

 5   individualized reliance on the continuing availability of §

 6   212(c) relief.     See 369 F.3d, 634;see also Wilson v.

 7   Gonzales, 471 F.3d 111, 122 (2d Cir. 2006).

 8          Avila Solano cites a number of agency decisions for the

 9   proposition that waivers of inadmissibility may be filed

10   nunc pro tunc without the need to show individualized

11   reliance.     However, all predate the 1997 repeal of

12   § 212(c) or are otherwise not germane.     For example, Edwards

13   v. INS concerned § 212(c) applicants who had been convicted

14   pursuant to guilty pleas.     See 393 F.3d 299, 303, 305 (2d

15   Cir. 2004).     Avila Solano’s reliance on Lovan v. Holder, 659

16   F.3d 653 (8th Cir. 2011), is also misplaced; the Eighth

17   Circuit does not require a showing of individualized

18   reliance.     See 659 F.3d at 656 n.3.

19          Accordingly, the BIA did not abuse its discretion in

20   concluding that Avila Solano did not merit tolling of the

21   time and numerical limitations on the ground of ineffective

22   assistance of counsel.     See Ke Zhen Zhao v. U.S. Dep’t of

23   Justice, 265 F.3d 83, 93 (2d Cir. 2001).

                                     4
1       For the foregoing reasons, the petition for review is

2   DENIED.

3                              FOR THE COURT:
4                              Catherine O’Hagan Wolfe, Clerk
5
6




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