09 -19 89 -ag

Hoyos v. Holder BIA A098 361 208 

### UNITED STATES COURT OF AP PEALS FOR T HE SE COND CIRCU IT 

# SUM MARY 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 1 1 UPON DUE CONSIDERATION of this petition for review of a 1 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 1 3 ORDERED, ADJUDGED, AND DECREED that the petition for review 1 4 is DENIED. 1 5 Petitioner Maria Isabel Hoyos, a native and citizen of 1 6 Colombia, seeks review of an April 22, 2009 order of the BIA 1 7 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. 1 9 22, 2009). We assume the parties’ familiarity with the 2 0 underlying facts and procedural history of the case. 2 1 We find that the BIA did not abuse its discretion in 2 2 denying Hoyos’s motion to reopen as untimely. See Ali v. 23 Gonzales , 448 F.3d 515, 517 (2d Cir. 2006). There is no 2 4 dispute that Hoyos’s motion to reopen, filed in August 2008, 2 5 was untimely because the IJ’s order of removal became final 2 6 in May 2006. See 8 C.F.R. § 1003.2(c)(2) (providing that an 2 7 alien seeking to reopen proceedings may file one motion to3 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 1 0 allegedly deficient performance, noting that a timely motion 1 1 to reopen would have been due in August 2006, while Hoyos 1 2 did not meet with her former counsel until January 2007, and 1 3 indeed her marriage to a U.S. citizen – the basis of her 1 4 motion to reopen for adjustment of status – did not take 1 5 place until December 2006. Although Hoyos argues that the 1 6 BIA’s decision was based on the standards set forth in 17 Matter of Compean, 24 I. & N. Dec. 710 (A.G. 2009), a 1 8 decision which was later vacated, see Matter of Compean , 25 1 9 I. & N. Dec. 1, 3 (A.G. 2009), even under the applicable 2 0 pre- Compean standard, a motion to reopen for ineffective 2 1 assistance of counsel required a showing that counsel’s 2 2 deficient performance prejudiced the outcome of the alien’s4 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. 1 0 For the foregoing reasons, the petition for review is 1 1 DENIED. As we have completed our review, any pending motion 1 2 for a stay of removal in this petition is DISMISSED as moot. 1 3 Any pending request for oral argument in this petition is 1 4 DENIED in accordance with Federal Rule of Appellate 1 5 Procedure 34(a)(2), and Second Circuit Local Rule 34(b). 1 6 FOR THE COURT: 1 7 Catherine O’Hagan Wolfe, Clerk 18 19 20