14-4124-ag 

Rasid v. Lynch 

 BIA 

A072 796 699

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.

At a stated term of the United States Court of Appeals for 

the Second Circuit, held at the Thurgood Marshall United States 

Courthouse, 40 Foley Square, in the City of New York, on the 

26th day of February, two thousand sixteen. 

PRESENT: 

GUIDO CALABRESI,

REENA RAGGI, 

SUSAN L. CARNEY,

Circuit Judges. 

_____________________________________ 

FARUQ RASID, 

 Petitioner, 

v. 14-4124-ag 

 NAC 

LORETTA E. LYNCH, UNITED STATES 

ATTORNEY GENERAL, 

 Respondent. 

_____________________________________ 

FOR PETITIONER: Anthony O. Egbase; Victoria T. 

Orafa, A.O.E. Law & Associates, 

Inc., Los Angeles, California. 

FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 

Assistant Attorney General; Alison 

Marie Igoe, Senior Litigation 
2

Counsel; Daniel I. Smulow, Trial 

Attorney, Office of Immigration 

Litigation, United States 

Department of Justice, Washington, 

D.C. 

UPON DUE CONSIDERATION of this petition for review of a 

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

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

DENIED. 

 Petitioner Faruq Rasid, a native and citizen of Bangladesh, 

seeks review of an October 7, 2014, decision of the BIA denying 

Rasid’s third motion to reopen removal proceedings. In re 

Faruq Rasid, No. A072 796 699 (B.I.A. Oct. 7, 2014). We assume 

the parties’ familiarity with the underlying facts and 

procedural history in this case. 

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

of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 

2005). An alien seeking to reopen proceedings may file one 

motion to reopen no later than 90 days after the date on which 

the final administrative decision was rendered. 8 U.S.C. 

§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). There is no 

dispute that Rasid’s motion was otherwise untimely and 

number-barred because his order of removal became 
3

administratively final when he failed voluntarily to depart in 

January 2001, and it was his third such motion. 

 In certain circumstances, the time period for filing a 

motion to reopen may be equitably tolled upon an alien’s 

demonstration of ineffective assistance of counsel. See

Rashid v. Mukasey, 533 F.3d 127, 130 (2d Cir. 2008). 

Nonetheless, we discern no abuse of discretion in the BIA’s 

refusal to consider Rasid’s ineffective assistance claim. 

Indeed, we previously rejected this claim on the merits in 

reviewing Rasid’s petition for review of the BIA’s denial of 

his first motion to reopen. See Order, Rasid v. Holder, No. 

12-4110-ag, Dkt. No. 52. We dismissed the petition as 

frivolous, concluding that the BIA had properly denied Rasid’s 

ineffective assistance claim for failure to exercise due 

diligence. See id. 

 We adhere to this decision because Rasid has failed to raise 

new arguments or to present new evidence either to the BIA or 

this Court. See Johnson v. Holder, 564 F.3d 95, 99 (2d Cir. 

2009) (stating that law of the case doctrine requires adherence 

to prior decision on issue in subsequent stage of same case). 

A motion to reopen is not a vehicle to present previously 
4

rejected arguments on the basis of previously available 

evidence. See 8 C.F.R. § 1003.2(c) (requiring that motion to 

reopen be based on new and previously unavailable evidence). 

 Rasid also argues that the BIA erred in declining to reopen 

proceedings sua sponte because of the exceptional hardship his 

family would suffer if he is removed. The claim fails because 

we lack jurisdiction to review the BIA’s decision not to reopen 

proceedings sua sponte, as this decision is “entirely 

discretionary.” Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 

2006). Kucana v. Holder, 558 U.S. 233 (2010), cited by Rasid, 

is not to the contrary, as the Supreme Court there stated that 

it “express[ed] no opinion on whether federal courts may review 

the Board’s decision not to reopen removal proceedings sua 

sponte,” id. at 251 n.18. Nor is there any indication here that 

the BIA “may have declined to exercise its sua sponte authority 

because it misperceived the legal background and thought, 

incorrectly, that a reopening would necessarily fail,” such 

that remand to the Agency for reconsideration in view of the 

correct law would be appropriate. Mahmood v. Holder, 570 F.3d 

466, 469 (2d Cir. 2009). 
5

 Accordingly, the petition for review is DENIED. As we have 

completed our review, any stay of removal that the Court 

previously granted in this petition is VACATED, and any pending 

motion for a stay of removal in this petition is DISMISSED as 

moot. Any pending request for oral argument in this petition 

is DENIED in accordance with Federal Rule of Appellate Procedure 

34(a)(2), and Second Circuit Local Rule 34.1(b). 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk of Court