         10-4741-ag
         Bah v. Holder
                                                                                       BIA
                                                                                  Rohan, IJ
                                                                               A073 679 905
                          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 17th day of November, two thousand eleven.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                PETER W. HALL,
10                GERARD E. LYNCH,
11                     Circuit Judges.
12       _______________________________________
13
14       AHOUNO JULIEN BAH,
15                Petitioner,
16
17                       v.                                     10-4741-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:               Brian I. Kaplan, Goldberg &
25                                     Kaplan, LLP, New York, New York.
26
27       FOR RESPONDENT:               Tony West, Assistant Attorney
28                                     General; Richard M. Evans, Assistant
29                                     Director; Andrew Oliveira, Trial
30                                     Attorney, Office of Immigration
31                                     Litigation, United States Department
32                                     of Justice, 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 Ahouno Julien Bah, a native and citizen of

 6   the Ivory Coast, seeks review of an October 19, 2010,

 7   decision of the BIA affirming a December 15, 2008, decision

 8   of Immigration Judge (“IJ”) Patricia A. Rohan, which denied

 9   his motion to reopen his removal proceedings.     In re Ahouno

10   Julien Bah, No. A073 679 905 (B.I.A. Oct. 19, 2010), aff’g

11   No. A073 679 905 (Immig. Ct. N.Y. City Dec. 15, 2008).     We

12   assume the parties’ familiarity with the underlying facts

13   and procedural history in this case.

14       We review the BIA’s decision to affirm an IJ’s denial

15   of a motion to reopen for abuse of discretion.     Iavorski v.

16   INS, 232 F.3d 124, 128 (2d Cir. 2000).    An alien seeking to

17   reopen proceedings is required to file a motion to reopen no

18   later than 90 days after the date on which the final

19   administrative decision was rendered.     See 8 U.S.C.

20   § 1229a(c)(7)(C)(i); 8 C.F.R. §§ 1003.2(c)(2),

21   1003.23(b)(1).   Bah’s motion to reopen was filed more than

22   twelve years after his final order of removal was rendered.

23   Accordingly, the BIA did not abuse its discretion in denying

24   Bah’s motion to reopen as untimely.     See id.

                                   2
 1       Bah contends, however, that the time to file his motion

 2   to reopen should have been equitably tolled due to his prior

 3   counsel’s ineffective assistance.   Ineffective assistance of

 4   counsel may toll the time limitation on a motion to reopen

 5   if the movant has exercised “due diligence” in pursuing his

 6   claim.   See Rashid v. Mukasey, 533 F.3d 127, 130 (2d Cir.

 7   2008).   Due diligence must be established both before and

 8   after discovery of the alleged ineffective assistance.     See

 9   id. at 132; Iavorski, 232 F.3d at 134.

10       Bah argues that he exercised due diligence because he

11   remained in contact with his prior counsel until 2005, was

12   not advised that he could move to reopen proceedings based

13   on changed country conditions in the Ivory Coast, and

14   therefore had no opportunity to discover his prior counsel’s

15   ineffective assistance.   However, as Bah concedes, he did

16   not file his motion to reopen until December 2008, even

17   though he had been unable to contact his prior counsel since

18   2005 and knew of counsel’s ineffective assistance since at

19   least 2007.   Under these circumstances, the BIA did not

20   abuse its discretion in denying Bah’s motion to reopen due

21   to his failure to exercise due diligence.   See Rashid, 533

22   F.3d at 130; Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d

23   Cir. 2007).

                                   3
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 34.1(b).

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




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