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 -27 46 -ag Hodzic v. Holder BIA A095 377 065 A095 377 066 A095 377 067 

### UNITE D STATES C OURT OF AP PEALS FOR T HE SE COND CIRCU IT 

# SUM MARY ORDE R

RU L I N G S B Y S UMMAR Y O RD E RD O N O T HAVE P RE C E D E N T I A L E F F E C T . C I T A T I O N T O AS UMMAR Y O RDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RUL E 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 1 0 decision of the Board of Immigration Appeals (“BIA”), it is 1 1 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for 1 2 review is DENIED. 1 3 Petitioners, natives and citizens of Montenegro, seek 1 4 review of a May 16, 2008, order of the BIA denying their 1 5 motion to reopen. In re Hodzic, Nos. A095 377 065/066/067 1 6 (B.I.A. May 16, 2008). We assume the parties’ familiarity 1 7 with the underlying facts and procedural history of this 1 8 case. 1 9 We review the BIA’s denial of a motion to reopen for 2 0 abuse of discretion, mindful of the Supreme Court’s 2 1 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 2 4 substantial evidence the BIA’s evaluation of country 2 5 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 1 0 ordered, if such evidence is material and was not available 1 1 and could not have been discovered or presented at the 1 2 previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). The time 1 3 limit may also be equitably tolled if there is a claim for 1 4 ineffective assistance of counsel, and the petitioner 1 5 demonstrates both that counsel’s performance prejudiced the 1 6 outcome of the proceeding, and that he exercised due 1 7 diligence in pursuing the case. Iavorski v. INS, 232 F.3d 1 8 124, 135 (2d Cir. 2000). 1 9 The BIA did not abuse its discretion in finding that 2 0 Petitioners were not entitled to equitable tolling of the 2 1 filing period due to ineffective assistance of counsel. See 22 Rabiu v. INS , 41 F.3d 879, 882-83 (2d Cir. 1994) (holding4 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. 1 0 The BIA also did not abuse its discretion in finding 1 1 that Petitioners failed to demonstrate changed conditions in 1 2 Montenegro. See Wei Guang Wang v. BIA , 437 F.3d 270, 275 1 3 (2d Cir. 2006) (holding that the Board is not required to 1 4 “expressly parse or refute . . . each individual . . . piece 1 5 of evidence offered by the petitioner”). The BIA reasonably 1 6 found that the evidence Petitioners submitted showed a 1 7 continuation of the same conditions that had prevailed 1 8 during their merits hearing, and arguably showed an 1 9 improvement. Thus, the BIA’s decision is supported by 2 0 substantial evidence. See 2 1 8 U.S.C. § 1229a(c)(7)(C)(ii); Jian Hui Shao , 546 F.3d at 2 2 169.5 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 1 0 is VACATED, and any pending motion for a stay of removal in 1 1 this petition is DISMISSED as moot. Any pending request for 1 2 oral argument in this petition is DENIED in accordance with 1 3 Federal Rule of Appellate Procedure 34(a)(2), and Second 1 4 Circuit Local Rule 34.1(b). 1 5 FOR THE COURT: 1 6 Catherine O’Hagan Wolfe, Clerk 17