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 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,

on the 19th 4 day of December, two thousand thirteen.

5

6 PRESENT:

7 ROBERT D. SACK,

8 GERARD E. LYNCH,

9 SUSAN L. CARNEY,

10 Circuit Judges.

11 _______________________________________

12

13 EKATERINA OSTROVSKAYA, ALISA RADJABOVA,

14 Petitioners, 

15

16 v. 11-4815

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONERS: Ekaterina Ostrovskaya, Alisa

24 Radjabova, Pro Se, Spring Valley,

25 NY. 

26

27 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

28 Attorney General; David V. Bernal,
1 Assistant Director; Stuart S.

2 Nickum, Trial Attorney, Office of

3 Immigration Litigation, United

4 States Department of Justice,

5 Washington, D.C.

6

7 UPON DUE CONSIDERATION of this petition for review of a

8 Board of Immigration Appeals (“BIA”) decision, it is hereby

9 ORDERED, ADJUDGED, AND DECREED that the petition for review

10 is DENIED.

11 Petitioners Ekaterina Ostrovskaya, a native of the

12 former Soviet Union and citizen of Uzbekistan, and her

13 daughter, Alisa Radjabova, a native and citizen of

14 Uzbekistan, seek review of the October 12, 2011 decision of

15 the BIA denying their motion to reopen. In re Ekaterina

16 Ostrovskaya, Alisa Radjabova, Nos. A079 331 594/595 (B.I.A.

17 Oct. 12, 2011). We assume the parties’ familiarity with the

18 underlying facts and procedural history of the case.

19 The BIA’s denial of Petitioners’ motion to reopen as

20 untimely was not an abuse of discretion. See Kaur v. BIA,

21 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). An alien may

22 file one motion to reopen, generally no later than 90 days

23 after the date on which the final administrative decision

24 was rendered in the proceedings sought to be reopened. 8

25 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). 

26 There is no dispute that Petitioners’ 2011 motion was

2
1 untimely, as the final administrative order was issued in

2 2003. 

3 The agency may equitably toll the time limitation

4 imposed on motions to reopen if an alien demonstrates

5 ineffective assistance of counsel. See Rabiu v. INS, 41

6 F.3d 879, 882 (2d Cir. 1994). To prevail on a request for

7 tolling based on a claim of ineffective assistance, an

8 applicant must demonstrate that: (1) “competent counsel

9 would have acted otherwise,” Esposito v. INS, 987 F.2d 108,

10 111 (2d Cir. 1993) (per curiam); (2) she was prejudiced as a

11 result of her counsel’s poor performance, see Rabiu, 41 F.3d

12 at 882; and (3) she exercised due diligence in pursuing her

13 claims during “both the period of time before the

14 ineffective assistance of counsel was or should have been

15 discovered and the period from that point until the motion

16 to reopen was filed” see Rashid v. Mukasey, 533 F.3d 127,

17 131 (2d Cir. 2008). 

18 Here, Petitioners generally assert that they

19 established that their prior counsel failed properly to

20 present their case before the immigration judge. As the BIA

21 reasonably found, however, Petitioners failed to provide any

22 evidence that they substantially complied with the

3
1 requirements for claiming ineffective assistance of counsel

2 as set forth in Matter of Lozada, 19 I. & N. Dec. 637

3 (B.I.A. 1988). Additionally, given Petitioners’ failure

4 both to raise this claim for nearly ten years after the

5 denial of their application for relief, and to provide any

6 excuse for the delay, the BIA reasonably found that

7 Petitioners failed to exercise due diligence in pursuing

8 their claim. See Jian Hua Wang v. BIA, 508 F.3d 710, 715

9 (2d Cir. 2007) (per curiam) (citing cases in which the Court

10 held that “a petitioner who waits two years or longer to

11 take steps to reopen a proceeding ha[d] failed to

12 demonstrate due diligence”). The BIA therefore did not err

13 in finding that the time limitation applicable to their

14 motion to reopen could not be equitably tolled. See Jian

15 Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 46 (2d Cir.

16 2005) (requiring substantial compliance with Lozada to

17 preserve an ineffective assistance of counsel claim);

18 Rashid, 533 F.3d at 131 (requiring due diligence). 

19 Because the timeliness issue was dispositive of the

20 motion to reopen, the BIA was not required to address

21 Petitioners’ prima facie eligibility for relief. See 8

22 C.F.R. § 1003.2(c)(1)-(2). To the extent Petitioners argue

23 that they established extraordinary circumstances warranting

4
1 sua sponte reopening and also demonstrated a change in

2 personal circumstances and country conditions, those

3 arguments are unexhausted and therefore we may not consider

4 them. See 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462

5 F.3d 113, 119 (2d Cir. 2006); Lin Zhong v. U.S. Dep’t of

6 Justice, 480 F.3d 104, 119-20 (2d Cir. 2007). 

7 For the foregoing reasons, the petition for review is

8 DENIED. 

9 FOR THE COURT: 

10 Catherine O’Hagan Wolfe, Clerk

5