09-1989-ag

Hoyos v. Holder

BIA

A098 361 208

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 21 day of January, two thousand ten. st

5

6 PRESENT:

7 PIERRE N. LEVAL,

8 JOSÉ A. CABRANES,

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges.

11 ______________________________________

12

13 MARIA ISABEL HOYOS, a.k.a. MARIA 

14 ISABEL ROMERO,

15 Petitioner, 

16 09-1989-ag

17 v. NAC

18

19 ERIC H. HOLDER, JR., UNITED STATES 

20 ATTORNEY GENERAL,

21 Respondent.

22 ______________________________________
2

1 FOR PETITIONER: William H. Oltarsh, New York, 

2 New York.

3

4 FOR RESPONDENT: Tony West, Assistant Attorney

5 General; Keith I. McManus, Senior

6 Litigation Counsel; Nairi M.

7 Simonian, Office of Immigration

8 Litigation, United States Department

9 of Justice, Washington, D.C.

10

11 UPON DUE CONSIDERATION of this petition for review of a

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

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

14 is DENIED.

15 Petitioner Maria Isabel Hoyos, a native and citizen of

16 Colombia, seeks review of an April 22, 2009 order of the BIA

17 denying her motion to reopen. In re Maria Isabel Hoyos,

18 a.k.a. Maria Isabel Romero, No. A098 361 208 (B.I.A. Apr.

19 22, 2009). We assume the parties’ familiarity with the

20 underlying facts and procedural history of the case.

21 We find that the BIA did not abuse its discretion in

22 denying Hoyos’s motion to reopen as untimely. See Ali v.

23 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). There is no

24 dispute that Hoyos’s motion to reopen, filed in August 2008,

25 was untimely because the IJ’s order of removal became final

26 in May 2006. See 8 C.F.R. § 1003.2(c)(2) (providing that an

27 alien seeking to reopen proceedings may file one motion to
3

1 reopen no later than 90 days after the date on which the

2 final administrative decision was rendered). However, the

3 deadline may be equitably tolled to accommodate claims of

4 ineffective assistance of counsel, provided, among other

5 requirements, that the movant shows that she was prejudiced

6 by her counsel’s performance. See Rashid v. Mukasey, 533

7 F.3d 127, 131 (2d Cir. 2008).

8 The BIA reasonably found that Hoyos failed to

9 demonstrate that she was prejudiced by her former counsel’s

10 allegedly deficient performance, noting that a timely motion

11 to reopen would have been due in August 2006, while Hoyos

12 did not meet with her former counsel until January 2007, and

13 indeed her marriage to a U.S. citizen – the basis of her

14 motion to reopen for adjustment of status – did not take

15 place until December 2006. Although Hoyos argues that the

16 BIA’s decision was based on the standards set forth in

17 Matter of Compean, 24 I. & N. Dec. 710 (A.G. 2009), a

18 decision which was later vacated, see Matter of Compean, 25

19 I. & N. Dec. 1, 3 (A.G. 2009), even under the applicable

20 pre-Compean standard, a motion to reopen for ineffective

21 assistance of counsel required a showing that counsel’s

22 deficient performance prejudiced the outcome of the alien’s
4

1 proceedings. See Rashid, 533 F.3d at 131. Moreover,

2 insofar as the BIA is the administrative body to which the

3 motion Hoyos’s former counsel allegedly failed to file would

4 have been directed, the BIA’s statement that “there is no

5 indication that such a motion would have been granted[,]” is

6 tantamount to a finding that it would have denied the

7 untimely motion pursuant to its discretionary authority

8 under 8 C.F.R. § 1003.2(a). Accordingly, the BIA’s denial

9 of Hoyos’s motion was not an abuse of discretion. 

10 For the foregoing reasons, the petition for review is

11 DENIED. As we have completed our review, any pending motion

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

13 Any pending request for oral argument in this petition is

14 DENIED in accordance with Federal Rule of Appellate

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

16 FOR THE COURT: 

17 Catherine O’Hagan Wolfe, Clerk

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