         12-64
         Konate v. Holder
                                                                                       BIA
                                                                               A094 824 565
                             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 July, two thousand thirteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                RAYMOND J. LOHIER, JR.,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       MOUSSA KONATE,
14                Petitioner,
15
16                          v.                                  12-64
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Jamie B. Naini, Memphis, TN.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; Richard Evans,
27                                     Assistant Director; Brooke M.
28                                     Maurer, Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     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 Moussa Konate, a native and citizen of Mali,

 6   seeks review of a December 9, 2011, decision of the BIA

 7   denying his motion to reopen his removal proceedings, In re

 8   Moussa Konate, No. A094 824 565 (B.I.A. Dec. 9, 2011).      We

 9   assume the parties’ familiarity with the underlying facts

10   and procedural history in this case.

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

12   abuse of discretion.    See Ali v. Gonzales, 448 F.3d 515, 517

13   (2d Cir. 2006) (per curiam).    Here, it is undisputed that

14   Konate’s motion to reopen was filed one day past the ninety-

15   day filing period for a motion to reopen.    See 8 C.F.R.

16   § 1003.2(c)(2).    Therefore, the BIA did not abuse its

17   discretion in denying Konate’s motion to reopen as untimely.

18   Konate argues on appeal that the BIA should have considered

19   whether he was entitled to equitable tolling of the filing

20   deadline.    However, this claim is unexhausted, as before the

21   BIA Konate neither asserted that he was entitled to

22   equitable tolling nor acknowledged that his motion was

23   untimely.    See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d

24   104, 119-20 (2d Cir. 2007).

                                    2
 1       Additionally, to warrant equitable tolling, an alien

 2   must demonstrate ineffective assistance of counsel by

 3   showing that competent counsel would have acted otherwise,

 4   and that he was prejudiced by his counsel’s performance,

 5   none of which Konate has alleged.   See Rashid v. Mukasey,

 6   533 F.3d 127, 131 (2d Cir. 2008).   Even if Konate had

 7   alleged ineffective assistance of counsel, however, no

 8   prejudice resulted from his counsel’s actions because the

 9   BIA did not err in determining that Konate’s new evidence

10   did not demonstrate that he had testified truthfully at his

11   original merits hearing and thus established good moral

12   character for the purposes of eligibility for cancellation

13   of removal.   See Rabiu v. INS, 41 F.3d at 879, 882 (2d Cir.

14   1994); Jian Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d 43,

15   48 n.2 (2d Cir. 2005).

16       Finally, we lack jurisdiction to review the BIA’s

17   discretionary decision not to reopen Konate’s proceedings

18   sua sponte.   See Ali, 448 F.3d at 518.

19       For the foregoing reasons, the petition for review is

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

21   removal that the Court previously granted in this petition

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


                                   3
1   this petition is DISMISSED as moot.    Any pending request for

2   oral argument in this petition is DENIED in accordance with

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

4   Circuit Local Rule 34.1(b).

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




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