         09-0138-ag
         Teoh v. Holder
                                                                                           BIA
                                                                                   A073 539 076
                           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               Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl               Street, in the City of
 4       New York, on the 8 th day of January,              two thousand ten.
 5
 6       PRESENT:
 7
 8                ROBERT A. KATZMANN,
 9                BARRINGTON D. PARKER,
10                GERARD E. LYNCH,
11                          Circuit Judges.
12       _________________________________________
13
14       POHTEIK TEOH,
15                Petitioner,
16
17                        v.                                       09-0138-ag
18                                                                 NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _________________________________________
23
24       FOR PETITIONER:                 Maria Isabel A.N. Thomas, Thomas &
25                                       Thomas LLC, New York, New York.
26
27       FOR RESPONDENT:                 Tony West, Assistant Attorney
28                                       General; Emily Anne Radford,
29                                       Assistant Director; Craig A. Newell,
30                                       Jr., Trial Attorney, Office of
1                            Immigration Litigation, United
2                            States Department of Justice,
3                            Washington, D.C.
4
5        UPON DUE CONSIDERATION of this petition for review of a

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

7    ORDERED, ADJUDGED, AND DECREED, that the petition for review

8    is DENIED.

9        Petitioner Pohteik Teoh, a native and citizen of

10   Malaysia, seeks review of the December 12, 2008 order of the

11   BIA, which denied his motion to reopen.     In re Pohteik Teoh,

12   No. A073 539 076 (B.I.A. Dec. 12, 2008).     We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history of the case.

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

16   abuse of discretion.   See Kaur v. BIA, 413 F.3d 232, 233 (2d

17   Cir. 2005) (per curiam).   Here, the BIA did not abuse its

18   discretion in denying Teoh’s motion to reopen as untimely

19   because he filed it in July 2008, over 12 years after the

20   agency issued its final order of removal.     See 8 C.F.R.

21   § 1003.2(c)(2).

22       When ineffective assistance of counsel prevents an

23   alien from presenting his claim, the filing deadline for

24   motions to reopen may be equitably tolled.     Cekic v. INS,


                                   2
1    435 F.3d 167, 170 (2d Cir. 2006).     However, in order to

2    warrant equitable tolling, an alien is required to

3    demonstrate that he exercised “due diligence” in pursuing

4    his claims during “both the period of time before the

5    ineffective assistance of counsel was or should have been

6    discovered and the period from that point until the motion

7    to reopen is filed.”     See Rashid v. Mukasey, 533 F.3d 127,

8    132 (2d Cir. 2008).     We have noted that “there is no period

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

10   therefore, disqualifies a petitioner from equitable

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

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

13   Cir. 2007).

14       The BIA found that Teoh failed to demonstrate that he

15   acted with due diligence in pursuing his ineffective

16   assistance of counsel claim between June 2005, when he

17   married a U.S. citizen, and April 2008, when he consulted

18   with new counsel.     See Jian Hua Wang v. BIA, 508 F.3d 710,

19   715 (2d Cir. 2007) (finding that waiting 8 months after the

20   receipt of documents through FOIA to file the motion to

21   reopen did not demonstrate due diligence).     Although Teoh

22   argues that his motion should be equitably tolled, he does


                                     3
1    not actually challenge the BIA’s finding that he failed to

2    exercise due diligence in his opening brief to this Court. 1

3    Thus, he has waived any such challenge.     See Yueqing Zhang

4    v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).

5        To the extent that Teoh argues that the BIA erred in

6    failing to consider the equities in his case and declining

7    to reopen his case sua sponte, we lack jurisdiction to

8    consider those arguments.     See Azmond Ali v. Gonzales, 448

9    F.3d 515, 518 (2d Cir. 2006) (finding that this Court lacks

10   jurisdiction to consider the BIA’s decision     not to reopen a

11   case sua sponte under 8 C.F.R. § 1003.2(a), because such a

12   decision is “entirely discretionary”).

13       Finally, because Teoh’s failure to exercise due

14   diligence was entirely dispositive of his motion, we need

15   not consider his challenge to the BIA’s alternative finding

16   that he failed to comply with the requirements set forth in

17   Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988), or

18   that he was prejudiced by his counsel’s purportedly

19   ineffective assistance.     See Rashid, 533 F.3d at 132.



         1
           Teoh’s argument in his reply brief does not suffice.
     See McCarthy v. S.E.C., 406 F.3d 179, 186 (2d Cir. 2005)
     (finding that “arguments not raised in an appellant’s
     opening brief, but only in his reply brief are not properly
     before an appellate court”).
                                   4
1        For the foregoing reasons, the petition for review is

2    DENIED.   As we have completed our review, any stay of

3    removal that the Court previously granted in this petition

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

5    this petition is DISMISSED as moot.   Any pending request for

6    oral argument in this petition is DENIED in accordance with

7    Federal Rule of Appellate Procedure 34(a)(2), and Second

8    Circuit Local Rule 34(b).

 9                               FOR THE COURT:
10                               Catherine O’Hagan Wolfe, Clerk
11
12                               By:___________________________




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