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.**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 31 st** **day of October, two thousand thirteen.** 4 5 **PRESENT:** 6 **ROBERT A. KATZMANN,** 7 Chief Judge, 8 **DEBRA ANN LIVINGSTON,** 9 **SUSAN L. CARNEY,** 10 Circuit Judges**.** 11

**_____________________________________** 12 13 **IBRAHIM BAH,** 14 Petitioner**,** 15 16 **v. 12-3184** 17 **NAC** 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent**.** 21

**_______________________________________** 22 23 **FOR PETITIONER: Theodore Vialet, New York, New York.** 24 25 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 26 **Attorney General; Emily Anne** 27 **Radford, Assistant Director; Jesse** 28 **Lloyd Busen, Trial Attorney, Office** 29 **of Immigration Litigation, United** 30 **States Department of Justice,** 31 **Washington, D.C.** 32UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED, that the petition for review 3 is DENIED. 4 Petitioner Ibrahim Bah, a native and citizen of Sierra 5 Leone, seeks review of a July 26, 2012 decision of the BIA 6 affirming an October 7, 2010 decision of an Immigration 7 Judge (“IJ”) denying his motion to reopen his removal 8 proceedings. We assume the parties’ familiarity with the 9 underlying facts and procedural history in this case. 10 We review the BIA’s decision to affirm an IJ’s denial 11 of a motion to reopen for abuse of discretion. Iavorski v. 12
INS, 232 F.3d 124, 128 (2d Cir. 2000). An alien seeking to 13 reopen proceedings is required to file a motion to reopen no 14 later than 90 days after the date on which the final 15 administrative decision was rendered. See8 U.S.C. 16 § 1229a(c)(7)(C)(i); 8 C.F.R. §§ 1003.2(c)(2), 17 1003.23(b)(1). There is no dispute that Bah’s motion to 18 reopen, filed more than six years after his final order of 19 removal was rendered, was untimely. 20 Bah contends, however, that the time period for filing 21 his motion to reopen should have been tolled due to his 22 prior counsel’s ineffective assistance. Under the doctrine 23
2of equitable tolling, ineffective assistance of counsel may 1 toll the time limitation on a motion to reopen if the movant 2 has exercised “due diligence” in pursuing his claim. See 3 Rashid v. Mukasey, 533 F.3d 127, 131 (2d Cir. 2008). An 4 alien is required to exercise due diligence both before and 5 after he has or should have discovered the alleged 6 ineffective assistance. See id. at 132; Iavorski, 232 F.3d 7 at 134. 8 Bah asserts that he believed that his former counsel 9 had filed an appeal and that he was unaware that the IJ had 10 found his asylum application frivolous. He did not attempt 11 to contact his former attorney, however, until over a year 12 after the IJ’s decision. Bah admits that he was never able 13 to reach his former attorney and did not pay her entire fee 14 for filing an appeal. 15 Bah further contends that he ultimately decided not to 16 seek reopening until the agency adjudicated an I-730 17 petition for classification as a derivative asylee filed on 18 his behalf by his wife. But his motion was filed nearly a 19 year after the denial of that petition. For these reasons, 20 the BIA’s determination that Bah did not act diligently was 21 reasonable. See Rashid, 533 F.3d at 133 (finding that, even 22

3if a petitioner did not “immediately realize . . . that his 1 counsel had been ineffective, due diligence required that he 2 follow up with his attorney after the DHS decision, and if 3 he received no response, to obtain new counsel, seek relief 4 from the agency on his own, or take other affirmative 5 action”); Iavorski, 232 F.3d at 134 (finding that petitioner 6 “failed as a matter of law to exercise the requisite due 7 diligence during the period of nearly two years he seeks to 8 toll” where, inter alia, the petitioner was unable to reach 9 his attorney after the removal hearing and had never paid 10 the attorney's fee for filing an appeal). 11 Finally, because Bah did not demonstrate that he acted 12 diligently, his motion was untimely, and it was not 13 necessary for the BIA to consider the merits of his 14 ineffective assistance claims or to review the transcript of 15 the underlying proceedings. See Cekic v. INS, 435 F.3d 167, 16 170 (2d Cir. 2006) (explaining that “no matter how 17 egregiously ineffective counsel's assistance may have been, 18 an alien will not be entitled to equitable tolling unless he 19 can affirmatively demonstrate that he exercised reasonable 20 due diligence during the time period sought to be tolled”). 21

4For the foregoing reasons, the petition for review is 1
DENIED. 2
FOR THE COURT: 3 Catherine O’Hagan Wolfe, Clerk 4

5