12-3184

Bah v. Holder

BIA

Schoppert, IJ

A095 148 838

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 Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 31st 4 day of October, two thousand thirteen.

5

6 PRESENT:

7 ROBERT A. KATZMANN,

8 Chief Judge,

9 DEBRA ANN LIVINGSTON,

10 SUSAN L. CARNEY,

11 Circuit Judges.

12 _____________________________________

13

14 IBRAHIM BAH,

15 Petitioner, 

16

17 v. 12-3184

18 NAC 

19 ERIC H. HOLDER, JR., UNITED STATES 

20 ATTORNEY GENERAL, 

21 Respondent.

22 _______________________________________

23

24 FOR PETITIONER: Theodore Vialet, New York, New York.

25

26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

27 Attorney General; Emily Anne

28 Radford, Assistant Director; Jesse

29 Lloyd Busen, Trial Attorney, Office

30 of Immigration Litigation, United

31 States Department of Justice,

32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a

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

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

4 is DENIED.

5 Petitioner Ibrahim Bah, a native and citizen of Sierra

6 Leone, seeks review of a July 26, 2012 decision of the BIA

7 affirming an October 7, 2010 decision of an Immigration

8 Judge (“IJ”) denying his motion to reopen his removal

9 proceedings. We assume the parties’ familiarity with the

10 underlying facts and procedural history in this case.

11 We review the BIA’s decision to affirm an IJ’s denial

12 of a motion to reopen for abuse of discretion. Iavorski v.

13 INS, 232 F.3d 124, 128 (2d Cir. 2000). An alien seeking to

14 reopen proceedings is required to file a motion to reopen no

15 later than 90 days after the date on which the final

16 administrative decision was rendered. See 8 U.S.C. 

17 § 1229a(c)(7)(C)(i); 8 C.F.R. §§ 1003.2(c)(2),

18 1003.23(b)(1). There is no dispute that Bah’s motion to

19 reopen, filed more than six years after his final order of

20 removal was rendered, was untimely. 

21 Bah contends, however, that the time period for filing

22 his motion to reopen should have been tolled due to his

23 prior counsel’s ineffective assistance. Under the doctrine

2
1 of equitable tolling, ineffective assistance of counsel may

2 toll the time limitation on a motion to reopen if the movant

3 has exercised “due diligence” in pursuing his claim. See

4 Rashid v. Mukasey, 533 F.3d 127, 131 (2d Cir. 2008). An

5 alien is required to exercise due diligence both before and

6 after he has or should have discovered the alleged

7 ineffective assistance. See id. at 132; Iavorski, 232 F.3d

8 at 134.

9 Bah asserts that he believed that his former counsel

10 had filed an appeal and that he was unaware that the IJ had

11 found his asylum application frivolous. He did not attempt

12 to contact his former attorney, however, until over a year

13 after the IJ’s decision. Bah admits that he was never able

14 to reach his former attorney and did not pay her entire fee

15 for filing an appeal. 

16 Bah further contends that he ultimately decided not to

17 seek reopening until the agency adjudicated an I-730

18 petition for classification as a derivative asylee filed on

19 his behalf by his wife. But his motion was filed nearly a

20 year after the denial of that petition. For these reasons,

21 the BIA’s determination that Bah did not act diligently was

22 reasonable. See Rashid, 533 F.3d at 133 (finding that, even

3
1 if a petitioner did not “immediately realize . . . that his

2 counsel had been ineffective, due diligence required that he

3 follow up with his attorney after the DHS decision, and if

4 he received no response, to obtain new counsel, seek relief

5 from the agency on his own, or take other affirmative

6 action”); Iavorski, 232 F.3d at 134 (finding that petitioner

7 “failed as a matter of law to exercise the requisite due

8 diligence during the period of nearly two years he seeks to

9 toll” where, inter alia, the petitioner was unable to reach

10 his attorney after the removal hearing and had never paid

11 the attorney's fee for filing an appeal).

12 Finally, because Bah did not demonstrate that he acted

13 diligently, his motion was untimely, and it was not

14 necessary for the BIA to consider the merits of his

15 ineffective assistance claims or to review the transcript of

16 the underlying proceedings. See Cekic v. INS, 435 F.3d 167,

17 170 (2d Cir. 2006) (explaining that “no matter how

18 egregiously ineffective counsel's assistance may have been,

19 an alien will not be entitled to equitable tolling unless he

20 can affirmatively demonstrate that he exercised reasonable

21 due diligence during the time period sought to be tolled”).

4
1 For the foregoing reasons, the petition for review is

2 DENIED. 

3 FOR THE COURT: 

4 Catherine O’Hagan Wolfe, Clerk

5