11-3071-ag

Hussain v. Holder

BIA

A095 382 454

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

New York, on the 24th 4 day of April, two thousand twelve.

5

6 PRESENT:

7 JON O. NEWMAN,

8 JOSÉ A. CABRANES,

9 BARRINGTON D. PARKER,

10 Circuit Judges. 

11 _____________________________________

12

13 MOHAMMAD HUSSAIN,

14 Petitioner, 

15

16 v. 11-3071-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Amy Nussbaum Gell, Gell & Gell, New

24 York, New York.

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General; David V. Bernal, Assistant

28 Director; Lindsay W. Zimliki,

29 Attorney, Office of Immigration

30 Litigation, United States Department

31 of Justice, Washington, D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

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

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

4 review is DENIED in part and DISMISSED in part.

5 Mohammad Hussain, a native and citizen of Pakistan,

6 seeks review of a June 30, 2011, decision of the BIA denying

7 his motion to reopen and reconsider. In re Mohammad Hussain,

8 No. A095 382 454 (B.I.A. June 30, 2011). We assume the

9 parties’ familiarity with the underlying facts and

10 procedural history of this case.

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

12 reconsider for abuse of discretion. See Kaur v. BIA, 413

13 F.3d 232, 233 (2d Cir. 2005) (per curiam); Jin Ming Liu v.

14 Gonzales, 439 F.3d 109, 111 (2d Cir. 2006). A motion to

15 reconsider must specify errors of fact or law in the BIA’s

16 decision and be supported with pertinent authority. 

17 See 8 C.F.R. § 1003.2(b)(1); Ke Zhen Zhaov. U.S. Dep’t of

18 Justice, 265 F.3d 83, 93 (2d Cir. 2001). A motion to

19 reconsider “is a request that the Board reexamine its

20 decision in light of additional legal arguments, a change of

21 law, or perhaps an argument or aspect of the case which was

22 overlooked.” In re Cerna, 20 I. & N. Dec. 399, 402 n.2 (BIA
3

1 1991) (internal quotation marks omitted). Here, as Hussain

2 failed to identify any errors of fact or law in his motion

3 to reconsider the BIA’s October 2010 decision denying his

4 second motion to reopen, the BIA did not abuse its

5 discretion in denying reconsideration.

6 Nor did the BIA abuse its discretion in denying

7 Hussain’s third motion to reopen. Aliens seeking to reopen

8 proceedings may file one motion to reopen no later than 90

9 days after the date on which the final administrative

10 decision was rendered. 8 U.S.C. § 1229a(c)(7)(A), (C);

11 8 C.F.R. § 1003.2(c)(2). It is undisputed that Hussain’s

12 November 2010 motion to reopen was untimely, because the BIA

13 issued its final order of removal in December 2008, and

14 number barred, because it is his third motion to reopen. 

15 See 8 U.S.C. § 1229a(c)(7)(A), (C)(i); see also 8 C.F.R.

16 § 1003.2(c)(2). However, these time and number limitations

17 do not apply if the motion is based on changed country

18 conditions. 8 U.S.C. § 1229a(c)(7)(C)(ii); see also

19 8 C.F.R. § 1003.2(c)(3)(ii). Here, Hussain failed to offer

20 material evidence of changed country conditions. 

21 Hussain argues that the background materials in support

22 of his motion to reopen established changed country
4

1 conditions. However, the materials consisted of Hussain’s

2 own affidavit, in which he conclusorily asserted that

3 conditions in Pakistan had deteriorated for Shia Muslims. 

4 This showing was insufficient. 

5 Further, although the ineffective assistance of counsel

6 can toll the time for filing a motion to reopen, the BIA did

7 not abuse its discretion in declining to toll the relevant

8 time period in this case. Assuming that a movant

9 demonstrated that prior counsel was ineffective, in order to

10 warrant equitable tolling, an alien is required to

11 demonstrate “due diligence” in pursuing his claim during

12 “both the period of time before the ineffective assistance

13 of counsel was or should have been discovered and the period

14 from that point until the motion to reopen is filed.” Rashid

15 v. Mukasey, 533 F.3d 127, 131–32 (2d Cir. 2008); see also

16 Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006). The BIA

17 reasonably concluded that Hussain failed to demonstrate due

18 diligence in pursuing his claim, as the record reflects that

19 Hussain was aware at least as early as December 2008 – when

20 the BIA denied his first motion to reopen and dismissed his

21 appeal – that his counsel had not filed a motion to remand

22 his case to the IJ in order to offer evidence corroborating
5

1 his claim that his brother had been assaulted in Pakistan in

2 2007. However, Hussain waited until March 2010 – over one

3 year later – to file a motion to reopen based on that

4 information and failed to provide any explanation for that

5 delay.

6 Moreover, the BIA reasonably concluded that Hussain

7 failed to demonstrate that his counsel’s alleged error

8 prejudiced him. See Debeatham v. Holder, 602 F.3d 481, 485

9 (2d Cir. 2010). Hussain failed to explain how the

10 information that would have served as the basis for a motion

11 to remand would have changed the outcome of his proceedings,

12 particularly as the IJ had already determined that Hussain

13 had failed to testify credibly regarding his claims, and the

14 information regarding his brother’s alleged assault bore a

15 different date – October 2007 – than Hussain had offered in

16 his testimony. Accordingly, the BIA did not err in

17 declining to toll the time period for filing Hussain’s

18 motion to reopen.

19 Finally, we dismiss the petition with respect to

20 Hussain’s challenge to the IJ’s underlying adverse

21 credibility determination because the current petition is

22 not timely to challenge that decision. See 8 U.S.C. 

23 § 1252(b)(1); Ke Zhen Zhao, 265 F.3d at 90 (providing that
6

1 when an alien files a timely petition for review from the

2 denial of a motion to reopen, but not from the underlying

3 affirmance of a removal order, the Court must confine its

4 review to the denial of the motion).

5 For the foregoing reasons, the petition for review is

6 DENIED in part and DISMISSED in part. As we have completed

7 our review, any stay of removal that the Court previously

8 granted in this petition is VACATED, and any pending motion

9 for a stay of removal in this petition is DISMISSED as moot.

10 Any pending request for oral argument in this petition is

11 DENIED in accordance with Federal Rule of Appellate

12 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

13 FOR THE COURT: 

14 Catherine O’Hagan Wolfe, Clerk

15

16