            NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                       File Name: 09a0337n.06
                         Filed: May 15, 2009

                                          No. 08-3470

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

AMADU WURIE BARRIE,                          )
    Petitioner,                              )
                                             )         PETITION FOR REVIEW FROM AN
v                                            )         ORDER OF THE BOARD OF
                                             )         IMMIGRATION APPEALS
                                             )
ERIC H. HOLDER, JR., ATTORNEY                )
GENERAL,                                     )
     Respondent.                             )
                                             )


Before: CLAY and GIBBONS, Circuit Judges; and GREER, District Judge.*

       GREER, District Judge. Amadu Wurie Barrie (“Barrie”) seeks review of a December 18,

2007 decision of the Board of Immigration Appeals (“BIA”) denying his motion to reopen his

removal proceedings and to reissue its prior decision denying his asylum application to enable him

to file a timely petition for review. Barrie also seeks review of an August 12, 2005 decision of the

BIA which denied his application for political asylum, withholding of removal, and protection under

the United Nations Convention Against Torture (“CAT”). For the reasons which follow, we

DISMISS the appeal of the August 12, 2005 decision because we lack jurisdiction to review the BIA

decision, and we DENY the petition for review of the December 18, 2007 BIA decision.


        *
        The Honorable J. Ronnie Greer, United States District Judge for the Eastern District of
Tennessee, sitting by designation.

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                                                   I.

       Barrie is a native and citizen of Sierra Leone who entered the United States on March 6, 2001.

On July 20, 2001, Barrie applied for political asylum, withholding of removal, and protection under

the CAT. On November 30, 2001, Barrie was served with a Notice to Appear which charged him

with being subject to removal from the United States pursuant to § 212(a)(6)(A)(i) of the Immigration

and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i).          Barrie appeared with counsel before an

immigration judge on October 1, 2002, for an evidentiary hearing. The immigration judge granted

the application for asylum and found that Barrie had suffered persecution on account of his ethnic

group. Barrie’s applications for withholding of removal and protection under the CAT were denied.

       The Department of Homeland Security (“DHS”) subsequently moved to reopen the

proceedings after it received a previously unavailable forensic report indicating that Barrie’s identity

documents were fraudulent. The DHS motion was granted and another hearing was held on February

23, 2004. The immigration judge heard testimony from the forensic document examiner and from

Barrie and the hearing was scheduled to reconvene on May 20, 2004. A second birth certificate from

Barrie was received at the reconvened hearing. In an oral decision, the immigration judge found that

Barrie was not credible, and had failed to carry his burden of demonstrating his eligibility for asylum

and that conditions had changed significantly in Sierra Leone.          Barrie’s petition for asylum,

withholding of removal, and Convention Against Torture protection were denied,                 and the

immigration judge ordered Barrie removed to Sierra Leone.

       Barrie filed a timely appeal of the immigration judge’s decision to the BIA on May 24, 2004.

On August 12, 2005, the BIA affirmed the immigration judge’s decision. No petition to review the


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August 2005 BIA decision was filed. On July 26, 2007, Barrie filed a motion to reopen and also

petitioned the BIA to reissue its decision of August 12, 2005, so that he could file a petition for

review with this Court. He asserted in his motion that his former attorney failed to inform him of the

BIA decision in time for him to file a timely petition for review. According to Barrie’s affidavit, he

learned of the BIA decision in October, 2005, when he called the BIA directly. On December 18,

2007, the BIA denied Barrie’s motion, finding that Barrie’s motion was untimely because it was filed

more than ninety days after the prior decision and that equitable tolling was not warranted because

Barrie had not exercised due diligence to file his motion once he learned of his attorney’s error.

        The BIA further found that Barrie had complied with the procedural requirements for a claim

of ineffective assistance of counsel but had not established the necessary showing of prejudice as to

his persecution and torture claims. The BIA also noted that Barrie did not challenge the prior finding

that his identity document was counterfeit and offered no new evidence that was previously

unavailable.

                                                   II.

        A petition for appellate court review of a final order of removal must be filed with the court

of appeals not later than thirty days after the date of the final order of removal. 8 U.S.C. § 1252(b)(1).

Barrie did not file a petition for review of the August 12, 2005 BIA decision. To the extent Barrie

now seeks review of the August 2005 decision, we lack jurisdiction to review the merits of that

decision because his petition for review was not timely filed. Prekaj v. I.N.S., 384 F.3d 265, 268 (6th

Cir. 2004). Barrie’s petition for judicial review is timely only as to the BIA’s December 18, 2007

denial of Barrie’s motion to reopen the case. We therefore DISMISS Barrie’s petition for review of

the August 2005 decision and do not address his claims as to the merits of the August 2005 decision.


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                                                  III.

       We review the denial of a motion to reopen under an abuse of discretion standard. I.N.S. v.

Abudu, 485 U.S. 94, 107 (1988); Tapia-Martinez v. Gonzales, 482 F.3d 417, 421 (6th Cir. 2007). An

abuse of discretion occurs when the denial to reopen “was made without a rational explanation,

inexplicably departed from established policies, or rested on an impermissible basis such as invidious

discrimination against a particular group.” Haddad v. Gonzales, 437 F.3d 515, 517 (6th Cir. 2006)

(quoting Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir. 2005)). “[T]he abuse-of-discretion

standard applies to motions to reopen regardless of the underlying basis of the alien’s request [for

relief].” I.N.S. v Doherty, 502 U.S. 314, 323 (1992).

                                                  IV.

       A motion to reopen must “be filed within 90 days of the date of entry of a final administrative

order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(i); see also 8 C.F.R. § 1003.2(c)(2). The ninety-day

period for filing a motion to reopen is subject to narrow exceptions:

               (1) where the BIA reopens the proceedings sua sponte; (2) where the
               parties agree to reopen the proceedings; (3) changed circumstances in
               the country of nationality of which there is new, material evidence that
               could not have been discovered or presented at the time of the original
               proceeding; and (4) certain in absentia decisions.

Qeraxhiu v. Gonzales, 206 F. App’x. 476, 480 (6th Cir. 2006) (citing 8 C.F.R. §§ 1003.2(a), (c)(3)).

       Here, Barrie does not dispute that his motion to reopen was filed after the ninety day period

expired. He argues, however, that the BIA erred in its decision “that petitioner did not exercised [sic]

due diligence in setting forth his ineffective assistance of counsel.” Pet’r Br. 5-6. He further contends

that “[t]he delay in question is only sixteen (16) months, not at all unreasonable under the


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circumstances.” Id. at 6. Although not explicitly stated by Barrie, we take this to be an argument that

the BIA erred when it declined to equitably toll the ninety-day filing deadline for his motion to

reopen.

          The Sixth Circuit has applied the doctrine of equitable tolling to otherwise time-barred

motions to reopen. See Harchenko v. I.N.S., 379 F.3d 405, 409-10 (6th Cir. 2004). “Strictly defined,

equitable tolling is the doctrine that the statute of limitations will not bar a claim if the plaintiff,

despite diligent efforts, did not discover the injury until after the limitations period had expired.”

Tapia-Martinez, 482 F.3d at 422 (quoting Luntungan v. Attorney General, 449 F.3d 551, 557 (3d Cir.

2006) (per curiam)) (internal quotation marks omitted).

          “Equitable tolling may apply when a petitioner has received ineffective assistance of counsel.”

Ljucovic v. Gonzales, 144 F. App’x. 500, 503 (6th Cir. 2005) (citations omitted). In determining

whether to apply equitable tolling to time-barred claims, we generally consider five factors that

include: “(1) the petitioner’s lack of notice of the filing requirement; (2) the petitioner’s lack of

constructive knowledge of the filing requirement; (3) diligence in pursuing one’s rights; (4) absence

of prejudice to the respondent; and (5) the petitioner’s reasonableness in remaining ignorant of the

legal requirement for filing his claim.” Barry v. Mukasey, 524 F.3d 721, 724 (6th Cir. 2008).

          Here, the BIA found that Barrie had complied with the procedural requirements for a claim

of ineffective assistance of counsel but had not shown that he acted with due diligence. We agree.

Barrie acknowledges that he learned that his appeal had been dismissed when he contacted the BIA

directly in October 2005; yet, Barrie did not raise an ineffective assistance of counsel claim at the time

and delayed the filing of his motion to reopen for approximately twenty-one months.1 “Due diligence


          1
              The petitioner in his brief incorrectly states that the delay was only sixteen months.

                                                       -5-
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, 482 F.3d at 423 (citation omitted).

        This Court has previously declined to apply equitabe tolling when a petitioner fails to exercise

due diligence in pursuing his rights. See Barry v. Mukasey, 524 F.3d 721, 725 (6th Cir. 2008)

(holding that petitioner had not exercised due diligence when she did not contact her attorney for one

year after the BIA issued its order and, after contacting a different attorney, waited over three months

to file her motion to reopen); Tapia-Martinez, 482 F.3d at 423 (finding that a fifteen-month delay

between discovering counsel’s deficient performance and filing a motion to reopen “cannot be

considered due diligence”); Ramirez v. Gonzales, 247 F. App’x. 782, 785-86 (6th Cir. 2007)

(petitioner “simply failed to act with due diligence” when he did nothing for two years after receiving

notice of order of removal and failed to promptly file a motion to reopen after claiming ineffective

assistance of counsel); Hermiz v. I.N.S., 86 F. App’x. 44, 45 (6th Cir. 2003) (equitable tolling denied

when petitioner did not make any inquiries regarding the status of his appeal for several years, and,

after learning of the court’s final decision to remove, he waited several months to file a motion to

reopen); Muhameti v. Gonzales, 230 F. App’x. 551, 552-53 (6th Cir. 2007) (finding that BIA did not

abuse its discretion in failing to apply equitable tolling to filing deadline or in denying motion where

petitioners were not diligent and did not explain seven month gap before filing motion to reopen);

Weerasinghe v. Gonzales, 210 F. App’x. 463, 468 (6th Cir. 2006) (equitable tolling denied when

petitioner obtained new counsel and still waited approximately two years to file a motion to reopen).

Barrie, despite his knowledge in October 2005 that the BIA had dismissed his appeal, offers no

explanation for the delay of almost two years in contacting a different attorney and filing a motion

to reopen. It cannot, therefore, be said that the BIA abused its discretion in declining to equitably toll


                                                   -6-
the time period for the filing of a motion to reopen.

       The government also argues, as the BIA found, that Barrie has failed to show that his claims

have been prejudiced in any way by the alleged ineffective assistance of counsel. This Court has

declined to equitably toll filing periods based on ineffective assistance of counsel where a petitioner

has failed to establish prejudice from his former counsel’s ineffective assistance. See Huicochea-

Gomez v. I.N.S., 237 F.3d 696, 699 (6th Cir. 2001). Here, the BIA specifically found that Barrie’s

motion to reopen offered no evidence which was not available at the time of the removal hearings and

presented no new evidence to establish his identity and, therefore, Barrie had failed to show he was

prejudiced in any way. Because Barrie failed to establish due diligence, however, we need not

address on appeal the issue of whether Barrie was prejudiced.

V.     Conclusion

       For the foregoing reasons, we DENY the petition for review as it relates to the BIA’s decision

denying Barrie’s motion to reopen his removal proceedings, and we DISMISS the petition for lack

of jurisdiction insofar as the petition requests review of the BIA decision of August 12, 2005.




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