    10-4266 (L)
    Opre v. Lynch
                                                                                  BIA
                                                                          A026 815 017
                                                                          A075 834 119
                     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 28th day of April, two thousand sixteen.

    PRESENT:
             JOHN M. WALKER, JR.,
             ROSEMARY S. POOLER,
             PETER W. HALL,
                  Circuit Judges.
    _____________________________________

    AFRIM OPRE, ADRIANA OPRE,
             Petitioners,

                    v.                                     10-4266 (L);
                                                           11-801 (Con),
                                                           11-2430 (Con)
                                                           NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:               Jeffrey M. Okun, New York, New York.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Richard M. Evans, Assistant
                                  Director; Nancy E. Friedman, Senior
                                Litigation Counsel, Office of
                                Immigration Litigation, United
                                States Department of Justice,
                                Washington, D.C.


    UPON DUE CONSIDERATION of these petitions for review of

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

hereby ORDERED, ADJUDGED, AND DECREED that the petitions for

review are DENIED.

    Petitioners         Afrim    Opre,      a   native    and    citizen     of

Macedonia, and his wife Adriana Opre, a native and citizen of

Albania, seek review of the October 20, 2010, February 11,

2011, and May 27, 2011, decisions of the BIA denying their

motions     to    reopen    their     removal        proceedings      and   for

reconsideration.        In re Afrim Opre, Adriana Opre, Nos. A026

815 017/075 834 119 (B.I.A. Oct. 20, 2010), (B.I.A. Feb. 11,

2011),    (B.I.A.   May    27,     2011).       We    assume    the   parties’

familiarity with the underlying facts and procedural history

in this case.

    We review the BIA’s denial of a motion to reopen or

reconsider for abuse of discretion. See Kaur v. BIA, 413 F.3d

232, 233 (2d Cir. 2004) (per curiam); Khouzam v. Ashcroft, 361

F.3d 161, 165 (2d Cir. 2004).             An abuse of discretion may be

found     where   the    BIA’s     decision      “provides      no    rational



                                      2
explanation, inexplicably departs from established policies,

is devoid of any reasoning, or contains only summary or

conclusory statements; that is to say, where the Board has

acted in an arbitrary or capricious manner.”           Kaur, 413 F.3d

at 233-34 (internal quotation marks omitted); Ke Zhen Zhao v.

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

I.   Motions to Reopen

     An alien seeking to reopen proceedings is required to

file a motion to reopen no later than 90 days after the date

on which the final administrative decision was rendered, and

is permitted to file only one such motion.               See 8 U.S.C.

§ 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2).           There is no

dispute that Petitioners’ August 2010, November 2010, and

March 2011 motions to reopen were untimely, because the BIA

issued Petitioners’ final order of removal in July 2007.

There is also no dispute that Petitioners’ November 2010 and

March     2011   motions   to   reopen   were   number-barred   because

Petitioners first sought reopening in August 2010.               See 8

U.S.C. § 1229a(c)(7)(A).

     A.     Diligence

     Under the doctrine of equitable tolling, ineffective

assistance of counsel may toll the time limitation on a motion


                                    3
to reopen where the movant has exercised “due diligence” in

pursuing his claim.    See Rashid v. Mukasey, 533 F.3d 127, 131

(2d Cir. 2008). Aliens are required to exercise due diligence

both before and after they have or should have discovered the

alleged ineffective assistance.           Id. at 132; Iavorski v. INS,

232 F.3d 124, 134 (2d Cir. 2000) (noting that “[e]quitable

tolling requires a party to pass with reasonable diligence

though [sic] the period it seeks to have tolled” (quotation

omitted; emphasis added)).        We have noted that “there is no

period of time which we can say is per se unreasonable, and,

therefore,      disqualifies     a       petitioner   from        equitable

tolling–or, for that matter, any period of time that is per se

reasonable.”    Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir.

2007).

    The   BIA    did   not     abuse     its   discretion    in    denying

Petitioners’ August 2010 motion as untimely due to their

failure to exercise diligence in pursuing their ineffective

assistance of counsel claims.            See Rashid, 533 F.3d at 131.

In her affidavit in support of the August 2010 motion, Adriana

represented that she and Afrim “contacted Mr. Christo in 2007

at or about the time of the issuance of the appeal” and

“provided $3,000.00 to [] Christo to file a motion to reopen.”


                                     4
However, because these representations do not demonstrate

diligence throughout the entire period sought to be tolled,

the BIA reasonably concluded that her affidavit provided no

basis for tolling.        See Rashid, 533 F.3d at 133.

      Petitioners’ contention that their allegations in their

February 2011 motion established diligence is without merit.

In that motion, Petitioners represented that Okun informed

Afrim in September 2009 that he needed “to have a payment made

to his office in advance of commencing work,” and subsequently

notified Afrim in Fall 2009 and May 2010 that he had not yet

received any funds.       While Adriana attested that she believed

that Okun was working on their motion to reopen from September

2009 to August 2010 and that she had delegated responsibility

for   overseeing    the    matter   to   Afrim,   the   BIA   reasonably

determined that such statements did not reflect diligence on

her part.   See Rashid, 533 F.3d at 131.

      Petitioners    also     failed     to   demonstrate     sufficient

diligence in their March 2011 motion in which they argued, for

the first time, that Okun may have implied that he would work

on their case before receiving payment.             However, the BIA

reasonably noted that these assertions could have been raised

earlier, and did not excuse the untimely and number-barred

filing of Petitioners’ third motion.
                                    5
       B.    Denial of Extension

       Petitioners also appear to argue that the BIA violated

their due process rights by failing to grant their motion for

an extension of time to supplement the record, in connection

with their August 2010 motion to reopen.                  “To establish a

violation of due process, an alien must show ‘that she was

denied a full and fair opportunity to present her claims’ or

‘that the IJ or BIA otherwise deprived her of fundamental

fairness.’”        Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir.

2007) (quoting Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d

144, 155 (2d Cir. 2006)).                In denying their motion for

extension, the BIA reasonably noted that Petitioners had

waited three years to file their first untimely motion to

reopen and failed to provide sufficient justification for that

delay.      Because Petitioners have failed to demonstrate that

any extension was required or merited, they are unable to show

that they were denied fundamental fairness or a full and fair

opportunity to present their claims.           See Burger, 498 F.3d at

134.

       C.    Departure Bar

       The BIA did not abuse its discretion in denying Afrim’s

August      2010   and   November   2010   motions   to    reopen   due   to

application of the departure bar, as the BIA’s denials were
                                     6
consistent with then-existing controlling precedent.                    See Xue

Yong Zhang v. Holder, 617 F.3d 650, 660-61 (2d Cir. 2010).

Moreover, because Petitioners fail to identify any flaw in the

BIA’s reasoning that its prior findings with respect to

Adriana’s lack of diligence applied equally to Afrim, they

have not shown any abuse of discretion.

      D.     Denial of Stays

      Any requests for stays of removal are moot given our

denial of these petitions.            Regardless, there was no due

process violation.          Afrim contends that “[t]here was ample

reason to grant the stay of removal to give time to show the

likelihood     of    success.”      However,      it    was   his    burden   to

demonstrate his entitlement to a stay, and his failure to do

so did not, as his argument suggests, necessitate that his

motion be granted. He cites no authority that he was entitled

to a stay or that an extension was merited or required, and he

has   failed    to   establish     that     he    was   denied      fundamental

fairness or a full and fair opportunity to present his claim,

as needed to demonstrate a due process violation. See Burger,

498   F.3d    at    134.     We   decline    to    consider      Petitioners’

unsupported allegation that the BIA has an undisclosed policy

of fast-tracking motions to reopen when they are accompanied

by stay requests.          Yueqing Zhang v. Gonzales, 426 F.3d 540,
                                     7
545    n.7   (2d     Cir.    2005)    (deeming         abandoned         Petitioner’s

challenge to IJ’s finding because he “devote[d] only a single

conclusory sentence to the argument”).

II. Motions to Reconsider

       A motion to reconsider must specify errors of fact or law

in    the    BIA’s    decision       and   be        supported     with     pertinent

authority.      See 8 C.F.R. § 1003.2(b)(1); Ke Zhen Zhao, 265

F.3d    at   90.      Because    the       BIA       did    not    err    in   denying

Petitioners’ August 2010 motion to reopen, which Petitioners

conceded      was    not    completed,         the    BIA    did    not    abuse   its

discretion      in    denying    reconsideration             of    that     decision.

Moreover, as “[a] party may file only one motion to reconsider

any given decision and may not seek reconsideration of a

decision denying a previous motion to reconsider,” 8 C.F.R.

§ 1003.2(b)(2), the BIA did not abuse its discretion in

denying Petitioners’ March 2011 motion to reconsider a prior

denial of reconsideration.             See Ke Zhen Zhao, 265 F.3d at 90.

       For the foregoing reasons, the petitions for review are

DENIED.      As we have completed our review, the motion for a

stay of removal in this petition is DENIED as moot.



                                       FOR THE COURT:
                                       Catherine O’Hagan Wolfe, Clerk




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