NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0586n.06 No. 09-4440 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

AMADOUL Y, P etitioner ,
v. ERI C H. HOL DER, J R., Attorney Gene ral, Respondent. ) ) ) ) ) ) ) ) ) ) ) ON P ETIT ION F OR REVIEW

FROM THE B OARD OF I MMI GRATI ON APPEAL S
O P I N I O N

Before: M OORE an d WHIT E, Circuit Judges, and VARLAN, D istrictJudge. * THOMAS A. VARLAN, Di s t r ic t J ud g e . Pe titioner Amadou L y (“L y ”), a native and citizen of Mauritania, seeks revie w of a decision of the Boa rd of I mmigration Appea ls (“B I A”) denying his untimely motion to reope n remova l proce eding s for lack of due diligenc e. L y acknow ledg es that the motion to reope n was untimely on its fac e. L y arg ues, howeve r, that the filing period for the motion to reope n should be equitably to l l ed as a result of his prior attorney s’ ineffe ctive repr esenta tion. Be cause we find that L y has not demonstrated due diligenc e, we conclude that the BI A did not abuse its discretion in denying L y ’s motion to reope n. We there fore aff irm the decision of the BI A and deny the petition for re view.

The Honora

ble Thomas A. Var lan, United States District J udg e for the Easter

n District of * Tenne ssee, sitting by

desig nation.No. 09-4440

Amadou Ly v. Eric Holder, Jr., Attorney Gene ral

I. BACKG ROUND L y was b o rn i n Mauritania in 1965 and was deporte d to Seneg al s ometime afte r 1990. L y enter ed the United S tates around J uly 1998. I n Fe bruar y 1999, L y filed an application for asy lum wi t h t h e former I mmigration and Natura liz ation Service (“I NS”). The I

NS instit uted remova l proce eding s and L y

conce ded re moveability

and applied f

or asy lum and withholding of r emoval. On Fe bruar

y 25, 2000, L y

appea red in I mmigration Court on his application for relief . He

was assisted at the hear ing by Nimmo Bha g at (“A ttorney Bha g at”) , the first of four attorney s. After the hear ing, the I mmigration J udg e (“I J ”) rende red an oral decision denying L y ’s application for asy lum and withholding of r emoval. Wit h the assistance of a second attorney , T. Dar nell Flowe rs (“A ttorney Flowe rs”) , L y timely appea led the I J ’s decision to the BI A. On Marc h 25, 2003, the BI A aff irmed, without opinion, the I J ’s decision. On April 21, 2003, with the assistance of a third attorney , Michae l Nesbit (“A ttorney Nesbit”), L

y timely petitioned the S ix th Circuit for review of the B I A’s dec ision. On October 20, 2004, a panel o f t h e S i x t h C i rcuit denied the petition for revie w and aff irmed the decision of the BI A. Ly v. Ashcroft , No. 03-3569, slip op. (6th Cir. filed Oct. 20, 2004)

. On J anuar y 17, 2008, almost five y ear s afte r the BI A aff irmed the I J ’s decision and more than three y ear s afte r t he S ix th Circuit aff irmed the de cision of the B I A, L y filed a motion to reope n in I mmigration Court with the as s i s t an ce of a fourth attorney , Thiaba Samb (“A ttorney Samb”). Conceding that the limitations period had passed, L y asser ted that his repr esenta tion by Attorney s Bha g at, Flowe rs, and Nesbi t was ineffe ctive, and he reque sted that the filing period be equitably

2No. 09-4440

Amadou Ly v. Eric Holder, Jr., Attorney Gene ral

tolled be cause he bec ame a war e of the ir substandard r epre sentation only on October

17, 2007, the date he reta ined Attorney Samb and, acc ording to L y , first lear ned of the denial of his a

ppeal. The I J denied the motion to reope n on Fe bruar y 1, 2008. On April 16, 2008, L y filed a second motion to reope n with the BI A on the same g rounds. On October 30, 2009, the BI A simult aneously vacated, fo r l ac k of jurisdiction, see 8 C.F.R. 1003.23(b)( 1), the I J ’s decision deny ing L y ’s motion to reope n, and denied L y ’s second motion to reope n filed with the BI A. I n that denial, the BI A found that L y had not exercised due diligenc e in raising his ineffe ctive assistanc e of counsel claims ag ainst Attorney s Bha g at and F lowers be cause he was awa

re of their repr esenta

tion in Fe bruar

y 2000 and in Marc h 2000, respe ctively , but waited

more than eig ht y ear s befor e filing a motion to reope n. The BI A also declined to exercise discretion

over L y ’s ineffe ctive assistance of counsel claim ag ainst Attorney Nesbit beca use he repr esente d L y befor e the Six th Circuit and his repr esenta tion wa s unrela ted to conduct befor e the BI A. L ast, the 1 BI A dec lined to exercise its sua sponte authority to reope n the re moval proce eding s. 2 L y timely petitioned the Six th Circ uit f or revie w of the B I A’s dec ision. On November 20, 2009, L y filed a motion to stay re m o v al p ro cee dings pending revie w of his petition. The Six th

L y has not raised or challeng ed this aspec t of the BI A’s decision and has there fore waived 1 arg ument on this issue

. See Bi Feng L iu v. Holder , 560 F.3d 485, 489 n.4 (6th Cir. 2009) (noting that an issue not raised in a party ’s briefs may g ener ally be deeme d waived) (citing Carter v. Univ. of Toldeo , 349 F.3d 269, 272 ( 6th Cir. 2003)). L y acknow ledg es that we lack jurisdiction to revie w this aspec t of the BI A’s decision. See 2 Barry v. Mukase

y , 524 F.3d 721, 724 (6th Ci r. 2 008) (“Six th Circuit law is clea r that the BI A’s deter mination to fore g o the exercise of its sua sponte authority is a d ecision that we are without jurisdiction to review.” ). 3No. 09-4440

Amadou Ly v. Eric Holder, Jr., Attorney Gene ral Circuit g rante d L y ’s reque st f or a stay on J anuar

y 26, 2010. Ly v. Holder , No. 09-4440, slip op. at 2 (6th Cir. filed J an. 26, 2010). II. ANALYSIS A decision to g rant or deny a motion to reope n immigra tion proce eding s is within the “broa d discretion” of the BI A. I.N.S. v. Do h er t y , 5 0 2 U.S

. 314, 323 (1992); 8 C.F.R. § 1003.2(a)

. We there fore revie w the denial of a motion to reope n for abuse of discretion. Barry , 524 F.3d a t 724. “T h i s s t an dard require s us to decide whether the denial of [t he] motion to reope n . . . was m ad e without a rational explanation, inexpl icab l y d ep arted from established policies, or rested on an impermissible basis such as invidious discrimination ag ainst a particular r ace or group.” Haddad

v. Gonzales , 437 F.3d 515, 517 (6th Cir. 2006) (citations and in te rnal quotations omitted) (alter ations in orig inal). Gene rally , a motion to reope n “must b e fi l ed n o l ater than 90 day s afte r the date on which the f

inal administrative dec ision was rende red in the pr ocee ding sought to be reopene d.” 8 C.F.R. § 1003.2(c) (2). The doctrine of equitable tolling may toll the 90-day limit ations period for filing motions to reope n, Harche nko v. I.N.S. , 37 9 F.3d 405, 410 (6th Cir. 2004), and “may be applied to permit reope ning when the alien demonstrates

. . . ineffe ctive assistan ce of counsel and [t hat he] was prejudice d there by .” Mezo v. Holder , 615 F.3d 616, 620 (6th Cir. 2010). We consider five fac tors when deter

mining whether to eq u i t ably toll an otherwise time-barr ed motion to reope n: “(1) the petitioner’s lack of notice of the filing requ i re m ent; (2) the petitioner’s lack of constructive knowledg e of the filing require ment; (3) diligenc e in pursuing one’s rig hts; (4) absenc e of prejudice

4No. 09-4440

Amadou Ly v. Eric Holder, Jr., Attorney Gene ral

to the responde nt; and (5) the petitioner’s rea sonablene ss in rema ining igno rant of the leg al require ment for f

iling his claim.” Barry , 524 F.3d a t 724 (citations omitted). L y acknow ledg es that his motion to reope n was u n t i m el y b ec ause it was filed almost five y ear s after

the final de cision of the B I A and more than t hree y ear s afte r t he S ix th Circuit aff irmed the BI A’s decision. See 8 C.F.R. § 1003.2(c) (2). He arg ues, howeve r, that equitable tolling should apply beca

use he had no notice or knowledg e of the limit ations period, beca use he does not understand Eng lish, beca

use his attorney s never informed him of the status of his case , and beca use he exerc ised due dilig ence in pursuit of his rights. The Six th Circuit has previously denied equitable tolling when the petitioner’s only err or was a fa ilure to exercise due diligenc e. See, e.g., Pepaj v. Holder , 321 F. App’ x 468, 472-73 (6th Cir. 2009) (dec lining to equitably toll the limit ations period beca use the petitioners failed to exercise due diligenc e); Barry , 524 F.3d at 725 (same) ; Tapia-Martinez v. Gonzales , 482 F.3d 417, 424 (6th Cir. 2007) (same)

. “Due diligenc e require s an alien to prove that the delay in filing the motion to reope n

was due to ‘an exceptional circ umstance bey ond his control.’” Barry , 524 F. 3 d at 724 (quoting Tapia-Martinez , 482 F.3d at 423 (citation omitted)). Whil e the leng th of the delay in filing a motion to r eopen is an important part of this analy sis, the mere passag e of time doe s not ne cessa rily imply

a lack of due diligenc e. Gordillo v. Holder , 640 F.3d 700, 705 (6th Cir. 2011). I ndeed, whether an alien was diligent “ultimately depends on all of the fac ts of the case , not just the chronolog ical ones.” Id.

5No. 09-4440

Amadou Ly v. Eric Holder, Jr., Attorney Gene ral

I n an aff idavit in s u p p o rt o f L y ’s ineffe ctive assistance claim ag ainst Attorney Nesbit, L y states that he beca

me conce rned with the status of his case in Augu s t 2 0 0 5 afte r he was denied a work permit. Acc ording to L y , Attorney Nesbit told him about the denial of the work permit but did not e x plain to him why it wa s denied, and never informed him about the status of his Six th Circuit appea l. An attorney ’s misrepre sentation or failure to inform an alien about the status of his case may contribute to a finding of equitable tolling on a motion to reope n. Gordillo , 640 F.3d at 704-05; see als o Mez o , 615 F.3d at 621 (finding that the attorney made multipl e misrepre sentations to the petitioner reg arding the status of her appea l). I n Gordillo , the petitioners filed an untimely motion to r eopen proce eding s afte r their a ttorney failed to notify them of the BI A’s decision aff irming the denial of their petit ion. 640 F.3d at 704-05. Prior to filin g their m otion to reope n, the petit ioners had soug ht the assistance o f at least three other individuals, two lawy ers and a non-lawy er who provides advice to aliens. Id. at 704. Eac h of these individuals told the petitioners that they had no way to obtain relief

. Id

. A panel of the Six th Circuit found the petitioners’ conduct indicative of due diligenc e because they “first took prompt action to pursue their rig hts and only later ga ve up afte r repe atedly

being told they

did not have any .” Id. at 705. The recor d in this case contains no indication that L y ’s attorney s made mis repr esenta tions t o him or failed to inform him of the status of his case . On the contra ry , the rec ord shows t h at Attorney Flowe rs fil ed a timely appea l o f t h e I J ’s decision to the BI A and Attorney Nesbit timely petitioned the Six th Circ uit f or revie w of the BI A’s decision. A letter from Attorney Nesbit to L y , dated October 22, 2004, informed L y of the Six th Circuit’s order aff irming the BI A. A second letter

6No. 09-4440

Amadou Ly v. Eric Holder, Jr., Attorney Gene ral

from Attorney Nesbit to L y , dated J une 13, 2005, informed L y that his case was conclude d and that the firm was closing L y ’s file and returning all documents. L y ’s asser tions that he repeatedly attempted to contac t Attorney s Flowe rs and Nesbit also do not show the exercise of due dilige nce

as there is no information reg ard i n g t he fre quency , dates, or the number of times L y attempted to contac t t he attorney s. See Ajazi v. Gonzales , 216 F. App’x 515, 520 (6th Cir. 2007) (“H aving no information as to the fr equenc y and number of attempts Petitioner made to c ontact counsel

. . . we cannot sa y that the B I A abuse d its discretion.”). L y has also provided no descr iption of his conduct betwee n Aug ust 2005, when he beca me

conce rned about his case , and October 17, 2007, when he reta ined Attorney Samb, and L y g ives no explanation f

or why he did not seek other advice during this pe riod. See Carroll v. Holder , 310 F. App’x 763, 765 (6th Cir. 2009) (find i n g t hat an alien exhibi ted a lack of diligenc e when he “lost contac t” with his attorney and took no action to pursue his leg al rig hts for the two y ear p er i o d h e soug ht to have equitably tolled). L y ’s descr iption of meeting Attorney Samb, who L y reta ined only afte r acc ompany ing a friend to an appointment beca use he did not understand why he could not g et

a work permit, also does not sug g est the due diligenc e exercised by the petitioners in Gordillo , who met with three individuals in their attempts to obtain assistance

. Fu rt h er m ore, assuming L y is unfamiliar with the Eng lish lang uag e or confuse d about immigra tion law, he has exhibi ted the ability to find, communicate with, and reta in counsel on at least four occa sions. We there fore have no explanation or rea son, let alone a n exceptional circ umstance, f or why L y did not attempt to obta in other leg al advice in the two-y ear period betwee n Aug ust 2005 and October 17, 2007. Fur thermore , 7No. 09-4440

Amadou Ly v. Eric Holder, Jr., Attorney Gene ral

L y did not pr operly file the motion to reope n with the BI A until April 16, 2008, nearly six months afte r re taining ne w counse l. L ast, L y arg ues that his compliance with the require ments set forth in Matter of Lozada , 19 I & N. Dec

. 637 (B I A 1988), shows that he exercised due diligenc e and that he has demonstrated that he was prejudice d by his prior attorney s’ conduct. Lozada set forth the following require ments for motions to reope n immigra tion proce eding s based on ineffe ctive assistance of counsel: “(1) that the motion be supported by an aff idavit detailing counsel’s finding s, (2) that counsel be informed of the al leg ations, and (3) that the motion show that disciplinary char g es have been filed with t h e appropr iate authority .” Sako v. Gonzales , 434 F.3d 857, 863 (6th Cir. 2006) (citing Lozada , 19 I & N. Dec

. at 639). The petitioner must also demonstrate prejudice resultin g from the ineffe ctive assistance of counse l. Lozada , 19 I& N . Dec . at 640. 3 The g overnme nt points out, howeve r, that L y ’s arg uments that he complied with Lozada and that he wa s prejudice d are not properly befor e us beca

use the BI A did not address these issues but denied L y ’s motion for lack of due diligenc e. We ag ree . The BI A did not re ac h t h e issues of wh et her L y had complied with Lozada or established prejudice beca use it declined to t o l l t h e limit ations period due to his lack of due dil ige nce. Be cause the B I A may decline to e quitably

toll this period based solely on lack of due diligenc e, and beca use we find that the BI A did not abuse its

The Attorney Gene ra l v acated Lozada in Matter of Compean , 24 I & N. Dec

. 710 (B I A 3 2009). The Attorney Gene ral subsequently vacated Compean , in Matter of Compean , 25 I & N. Dec

. 1 (B I A 2009), and direc ted immigra tion judge s to apply the Lozada require ment s t o m o t ions to reope n based on ine ffe ctive assistanc e of c ounsel claims. 8No. 09-4440

Amadou Ly v. Eric Holder, Jr., Attorney Gene ral

discretion in de termining that L y had not e x erc ised due diligenc e, we need not a ddress the Lozada require ments or whether L y has established prejudice

. See, e.g., Barry , 524 F.3d at 724 (stating that beca use the petitioner failed to establish due diligenc e, the court “nee d not addre ss on appea l whether she wa s prejudice d”). I n sum, neither the leng th of the delay nor the rec ord of this case compels the conclusion that the B I A abuse d its discretion in deny ing L y ’s motion to reopen for

lack of due dilige nce. III. CONCLUSION Acc ording ly , and for the fore g oing rea sons, we AF F IRM the decision of the BI A and DENY the petition for re view.

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