     17-2842 (L)
     Mijanul v. Sessions
                                                                                  BIA
                                                                          A096 154 860
                                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 TO 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
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 5th day of November, two thousand eighteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            BARRINGTON D. PARKER,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   AKRAM MIJANUL, MIJANUL AKRAM,
14            Petitioner,
15
16                         v.                              17-2842 (L);
17                                                         18-394 (Con)
18                                                         NAC
19   JEFFERSON B. SESSIONS III,
20   UNITED STATES ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                       Gregory Marotta, Vernon, NJ.
25
26   FOR RESPONDENT:                       Chad A. Readler, Acting Assistant
27                                         Attorney General; Jonathan A.
28                                         Robbins, Assistant Director;
29                                         Nicole Nardone, Trial Attorney,
30                                         Office of Immigration Litigation,
31                                         United States Department of
32                                         Justice, Washington, DC.
1        UPON DUE CONSIDERATION of these petitions for review of

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

3    hereby ORDERED, ADJUDGED, AND DECREED that the petitions for

4    review are DENIED.

5        Petitioner     Akram   Mijanul,   a   native   and   citizen   of

6    Bangladesh, seeks review of August 17, 2017 and January 30,

7    2018, decisions of the BIA denying his motions to reopen and

8    reconsider.     In re Akram Mijanul, No. A 096 154 860 (B.I.A.

9    Aug. 17, 2017 and Jan. 30, 2018).         We assume the parties’

10   familiarity with the underlying facts and procedural history

11   in this case.

12       As an initial matter, because Mijanul’s petitions are

13   timely filed only as to the BIA’s 2017 and 2018 decisions

14   denying his motions to reopen and reconsider, our review is

15   limited to those decisions, and we may not consider any direct

16   challenge to the BIA’s 2012 decision finding waived any

17   challenge to the immigration judge’s conclusion that Mijanul

18   filed a frivolous asylum application.        See Ke Zhen Zhao v.

19   U.S. Dep’t of Justice, 265 F.3d 83, 89-90 (2d Cir. 2001).

20   For the reasons stated below, we find no error in the denial

21   of reopening and reconsideration.

22       Motion to Reopen

23       We review the agency’s denial of a motion to reopen for
                                      2
1    abuse of discretion.          Ali v. Gonzales, 448 F.3d 515, 517 (2d

2    Cir. 2006).      It is undisputed that Mijanul’s May 2017 motion

3    to reopen was untimely because it was filed more than four

4    years after his 2012 final order of removal.                   See 8 U.S.C.

5    § 1229a(c)(7)(C)(i) (providing 90-day deadline for motions to

6    reopen).       Mijanul argued that the time for filing should be

7    tolled based on ineffective assistance of counsel.                 Although

8    the deadline may be tolled based on ineffective assistance,

9    a movant must show diligence during “the period of time before

10   the ineffective assistance of counsel was or should have been

11   discovered” and “from that point until the motion to reopen

12   is filed.”      Rashid v. Mukasey, 533 F.3d 127, 130-32 (2d Cir.

13   2008).     “[T]here is no period of time which . . . is per se

14   unreasonable, and, therefore, disqualifies a petitioner from

15   equitable tolling–or, for that matter, any period of time

16   that is per se reasonable.”           Jian Hua Wang v. BIA, 508 F.3d

17   710, 715 (2d Cir. 2007).

18       The BIA did not err in concluding that Mijanul failed to

19   demonstrate due diligence.            Id. (providing that “petitioner

20   bears    the    burden   of    proving    that    he    has   exercised   due

21   diligence.”).        First,     the   BIA’s      2012   decision   informed

22   Mijanul that he had forfeited his appeal by failing to file

23   a brief, that he had waived any challenge to the frivolousness
                                           3
1    determination,      and   that   the     frivolousness    determination

2    rendered him ineligible for future benefits.             Second, Mijanul

3    conceded that shortly thereafter his attorney admitted error

4    in failing to timely file a brief.             Because Mijanul waited

5    more than four years to move to reopen, the agency reasonably

6    determined that he failed to demonstrate due diligence during

7    the entire period he sought to toll.           See id. (citing several

8    cases in which the Court held that “a petitioner who waits

9    two years or longer to take steps to reopen . . . failed to

10   demonstrate due diligence”).        Absent due diligence, there is

11   no basis for tolling the time based on ineffective assistance.

12   See Rashid, 533 F.3d at 131 (explaining that “no matter how

13   egregiously ineffective counsel’s assistance may have been”

14   a   failure    to   affirmatively        demonstrate     due    diligence

15   forecloses    equitable    tolling       of   an   untimely    motion    to

16   reopen).

17        Reconsideration

18        We review the agency’s denial of a motion to reconsider

19   for abuse of discretion.         See Jin Ming Liu v. Gonzales, 439

20   F.3d 109, 111 (2d Cir. 2006).           A motion to reconsider must

21   “specify the errors of law or fact” in the agency’s prior

22   decision.     See 8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R.

23   § 1003.2(b)(1); see also Ke Zhen Zhao, 265 F.3d at 90.                  “A
                                         4
1    motion for reconsideration is a request that the Board

2    reexamine its decision in light of additional legal

3    arguments, a change of law, or perhaps an argument or

4    aspect of the case which was overlooked.”         Jin Ming Liu,

5    439 F.3d at 111 (internal quotation marks and citation

6    omitted).

7        Mijanul does not identify an error of law or fact or an

8    argument that was overlooked in the BIA’s denial of reopening.

9    Moreover, his motion to reconsider repeated arguments from

10   his motion to reopen.       See id. at 111 (“The BIA does not

11   abuse its discretion by denying a motion to reconsider where

12   the motion repeats arguments that the BIA has previously

13   rejected.”).   To the extent Mijanul now directly challenges

14   the frivolousness determination, it is not before us because

15   no petition for review was filed from the 2012 decision.          See

16   Ke Zhen Zhao, 265 F.3d at 89-90.

17       Nor did the BIA abuse its discretion in construing

18   Mijanul’s   motion   for   reconsideration   as    also   requesting

19   reopening based on his submission of a new affidavit because

20   new evidence is a ground for reopening, not reconsideration.

21   Compare 8 C.F.R. § 1003.2(b)(1) and 1003.2(c)(1).              As a

22   motion to reopen, it was both time and number barred.          See 8

23   U.S.C. § 1229a(c)(7)(A), (C)(i).     Moreover, the new affidavit
                                      5
1    reiterated the ineffective assistance claim, which, for the

2    reasons explained above, does not excuse the untimely filing.

3    See Rashid, 533 F.3d at 132.

4        For the foregoing reasons, the petitions for review are

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

6    that the Court previously granted is VACATED, and any pending

7    motion for a stay of removal is DISMISSED as moot.                  Any

8    pending request for oral argument in connection with these

9    petitions   is   DENIED   in   accordance   with   Federal   Rule    of

10   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

11   34.1(b).

12                                   FOR THE COURT:
13                                   Catherine O’Hagan Wolfe,
14                                   Clerk of Court




                                       6
