Pursuant to Federal Rule of Appellate Procedure *

43(c)(2), Attorney General Eric H. Holder, Jr., is

automatically substituted for former Attorney General

Michael B. Mukasey as the respondent in this case.

08-2746-ag

Hodzic v. Holder

BIA

A095 377 065

A095 377 066

A095 377 067

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

4 New York, on the 30 day of April, two thousand ten. th

5

6 PRESENT:

7 JOSÉ A. CABRANES,

8 DEBRA ANN LIVINGSTON,

9 GERARD E. LYNCH,

10 Circuit Judges.

11 _____________________________________

12

13 MUSA HODZIC, SAFETA HODZIC, AZRA HODZIC,

14 Petitioners, 

15

16 v. 08-2746-ag

17 NAC

18 ERIC H. HOLDER, JR., UNITED STATES *

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONERS: Pro Se.
2

1 FOR RESPONDENT: Tony West, Assistant Attorney

2 General; Russell J.E. Verby, Senior

3 Litigation Counsel; Carmel A.

4 Morgan, Trial Attorney, Office of

5 Immigration Litigation, Civil

6 Division, United States Department

7 of Justice, Washington, D.C.

8

9 UPON DUE CONSIDERATION of this petition for review of a

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

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

12 review is DENIED.

13 Petitioners, natives and citizens of Montenegro, seek

14 review of a May 16, 2008, order of the BIA denying their

15 motion to reopen. In re Hodzic, Nos. A095 377 065/066/067

16 (B.I.A. May 16, 2008). We assume the parties’ familiarity

17 with the underlying facts and procedural history of this

18 case.

19 We review the BIA’s denial of a motion to reopen for

20 abuse of discretion, mindful of the Supreme Court’s

21 admonition that such motions are “disfavored.” Ali v.

22 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.

23 Doherty, 502 U.S. 314, 322-23 (1992)). We review for

24 substantial evidence the BIA’s evaluation of country

25 conditions evidence submitted with a motion to reopen. Jian

26 Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
3

1 A party may file only one motion to reopen removal

2 proceedings, and must do so no later than 90 days after the

3 date on which the final administrative decision was rendered

4 in the proceeding sought to be reopened. 8 C.F.R.

5 § 1003.2(c)(1),(2). It is beyond dispute that Petitioners’

6 motion to reopen was untimely. However, the time and number

7 limitations do not apply to a motion to reopen that is

8 “based on changed circumstances arising in the country of

9 nationality or in the country to which deportation has been

10 ordered, if such evidence is material and was not available

11 and could not have been discovered or presented at the

12 previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). The time

13 limit may also be equitably tolled if there is a claim for

14 ineffective assistance of counsel, and the petitioner

15 demonstrates both that counsel’s performance prejudiced the

16 outcome of the proceeding, and that he exercised due

17 diligence in pursuing the case. Iavorski v. INS, 232 F.3d

18 124, 135 (2d Cir. 2000).

19 The BIA did not abuse its discretion in finding that

20 Petitioners were not entitled to equitable tolling of the

21 filing period due to ineffective assistance of counsel. See

22 Rabiu v. INS, 41 F.3d 879, 882-83 (2d Cir. 1994) (holding
4

1 that, in order to be entitled to equitable tolling, a

2 petitioner must demonstrate that counsel’s performance was

3 so poor as to impinge on the fundamental fairness of the

4 proceedings). As the BIA found, Petitioners could not

5 establish prejudice because they did not seek new

6 representation until after their orders of removal were

7 administratively final and the deadline for filing both a

8 motion to reopen and a petition for review had passed. See

9 id.

10 The BIA also did not abuse its discretion in finding

11 that Petitioners failed to demonstrate changed conditions in

12 Montenegro. See Wei Guang Wang v. BIA, 437 F.3d 270, 275

13 (2d Cir. 2006) (holding that the Board is not required to

14 “expressly parse or refute . . . each individual . . . piece

15 of evidence offered by the petitioner”). The BIA reasonably

16 found that the evidence Petitioners submitted showed a

17 continuation of the same conditions that had prevailed

18 during their merits hearing, and arguably showed an

19 improvement. Thus, the BIA’s decision is supported by

20 substantial evidence. See

21 8 U.S.C. § 1229a(c)(7)(C)(ii); Jian Hui Shao, 546 F.3d at

22 169.
5

1 Finally, we lack jurisdiction to review Petitioners’

2 argument that the BIA erred in refusing to reopen their

3 proceeding sua sponte under 8 C.F.R. § 1003.2(a), because

4 such a decision is “entirely discretionary.” See Azmond Ali

5 v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006); see also

6 Kucana v. Holder, 130 S. Ct. 827, 839 n.18 (2010).

7 For the foregoing reasons, the petition for review is

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

9 removal that the Court previously granted in this petition

10 is VACATED, and any pending motion for a stay of removal in

11 this petition is DISMISSED as moot. Any pending request for

12 oral argument in this petition is DENIED in accordance with

13 Federal Rule of Appellate Procedure 34(a)(2), and Second

14 Circuit Local Rule 34.1(b).

15 FOR THE COURT: 

16 Catherine O’Hagan Wolfe, Clerk

17