11-4815 Ostrovskaya v. Holder BIA A079 331 594 A079 331 595



### 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 C** **ITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 19 th** **day of December, two thousand thirteen.** 4 5 **PRESENT:** 6 **ROBERT D. SACK,** 7 **GERARD E. LYNCH,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges **.** 10

**_______________________________________** 11 12 **EKATERINA OSTROVSKAYA, ALISA RADJABOVA,** 13 Petitioners**,** 14 15 **v. 11-4815** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_______________________________________** 21 22 **FOR PETITIONERS: Ekaterina Ostrovskaya, Alisa** 23 **Radjabova,** Pro Se **, Spring Valley,** 24 **NY.** 25 26 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 27 **Attorney General; David V. Bernal,** 28**Assistant Director; Stuart S.** 1 **Nickum, Trial Attorney, Office of** 2 **Immigration Litigation, United** 3 **States Department of Justice,** 4 **Washington, D.C.** 5 6 UPON DUE CONSIDERATION of this petition for review of a 7 Board of Immigration Appeals (“BIA”) decision, it is hereby 8 ORDERED, ADJUDGED, AND DECREED that the petition for review 9 is DENIED. 10 Petitioners Ekaterina Ostrovskaya, a native of the 11 former Soviet Union and citizen of Uzbekistan, and her 12 daughter, Alisa Radjabova, a native and citizen of 13 Uzbekistan, seek review of the October 12, 2011 decision of 14 the BIA denying their motion to reopen. In re Ekaterina 15 Ostrovskaya, Alisa Radjabova , Nos. A079 331 594/595 (B.I.A. 16 Oct. 12, 2011). We assume the parties’ familiarity with the 17 underlying facts and procedural history of the case. 18 The BIA’s denial of Petitioners’ motion to reopen as 19 untimely was not an abuse of discretion. See Kaur v. BIA , 20 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). An alien may 21 file one motion to reopen, generally no later than 90 days 22 after the date on which the final administrative decision 23 was rendered in the proceedings sought to be reopened. 8 24 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). 25 There is no dispute that Petitioners’ 2011 motion was 26 2untimely, as the final administrative order was issued in 1 2003. 2 The agency may equitably toll the time limitation 3 imposed on motions to reopen if an alien demonstrates 4 ineffective assistance of counsel. See Rabiu v. INS , 41 5 F.3d 879, 882 (2d Cir. 1994). To prevail on a request for 6 tolling based on a claim of ineffective assistance, an 7 applicant must demonstrate that: (1) “competent counsel 8 would have acted otherwise,” Esposito v. INS,987 F.2d 108, 9 111 (2d Cir. 1993) (per curiam); (2) she was prejudiced as a 10 result of her counsel’s poor performance, see Rabiu , 41 F.3d 11 at 882; and (3) she exercised due diligence in pursuing her 12 claims during “both the period of time before the 13 ineffective assistance of counsel was or should have been 14 discovered and the period from that point until the motion 15 to reopen was filed” see Rashid v. Mukasey, 533 F.3d 127, 16 131 (2d Cir. 2008). 17 Here, Petitioners generally assert that they 18 established that their prior counsel failed properly to 19 present their case before the immigration judge. As the BIA 20 reasonably found, however, Petitioners failed to provide any 21 evidence that they substantially complied with the 22

3requirements for claiming ineffective assistance of counsel 1 as set forth in Matter of Lozada , 19 I. & N. Dec. 637 2 (B.I.A. 1988). Additionally, given Petitioners’ failure 3 both to raise this claim for nearly ten years after the 4 denial of their application for relief, and to provide any 5 excuse for the delay, the BIA reasonably found that 6 Petitioners failed to exercise due diligence in pursuing 7 their claim. See Jian Hua Wang v. BIA , 508 F.3d 710, 715 8 (2d Cir. 2007) (per curiam) (citing cases in which the Court 9 held that “a petitioner who waits two years or longer to 10 take steps to reopen a proceeding ha[d] failed to 11 demonstrate due diligence”). The BIA therefore did not err 12 in finding that the time limitation applicable to their 13 motion to reopen could not be equitably tolled. See Jian 14 Yun Zheng v. U.S. Dep’t of Justice,409 F.3d 43, 46 (2d Cir. 15 2005) (requiring substantial compliance with Lozadato 16 preserve an ineffective assistance of counsel claim); 17 Rashid , 533 F.3d at 131 (requiring due diligence). 18 Because the timeliness issue was dispositive of the 19 motion to reopen, the BIA was not required to address 20 Petitioners’ prima facie eligibility for relief. See 8 21 C.F.R. § 1003.2(c)(1)-(2). To the extent Petitioners argue 22 that they established extraordinary circumstances warranting 23 4sua sponte reopening and also demonstrated a change in 1 personal circumstances and country conditions, those 2 arguments are unexhausted and therefore we may not consider 3 them. See 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales , 462 4 F.3d 113, 119 (2d Cir. 2006); Lin Zhong v. U.S. Dep’t of 5 Justice , 480 F.3d 104, 119-20 (2d Cir. 2007). 6 For the foregoing reasons, the petition for review is 7

DENIED. 8

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

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