12-64 Konate v. Holder BIA A094 824 565 

### 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 16 th** **day of July, two thousand thirteen.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **RAYMOND J. LOHIER, JR.,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **MOUSSA KONATE,** 13 Petitioner**,** 14 15 **v. 12-64** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_____________________________________** 21 22 **FOR PETITIONER: Jamie B. Naini, Memphis, TN.** 23 24 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 25 **Attorney General; Richard Evans,** 26 **Assistant Director; Brooke M.** 27 **Maurer, Trial Attorney, Office of** 28 **Immigration Litigation, United** 29 **States Department of Justice,** 30 **Washington, D.C.** 31UPON 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 Moussa Konate, a native and citizen of Mali, 5 seeks review of a December 9, 2011, decision of the BIA 6 denying his motion to reopen his removal proceedings, In re 7

Moussa Konate , No. A094 824 565 (B.I.A. Dec. 9, 2011). We 8 assume the parties’ familiarity with the underlying facts 9 and procedural history in this case. 10 We review the BIA’s denial of a motion to reopen for 11 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 12 (2d Cir. 2006) (per curiam). Here, it is undisputed that 13 Konate’s motion to reopen was filed one day past the ninety14 day filing period for a motion to reopen. See8 C.F.R. 15 § 1003.2(c)(2). Therefore, the BIA did not abuse its 16 discretion in denying Konate’s motion to reopen as untimely. 17 Konate argues on appeal that the BIA should have considered 18 whether he was entitled to equitable tolling of the filing 19 deadline. However, this claim is unexhausted, as before the 20 BIA Konate neither asserted that he was entitled to 21 equitable tolling nor acknowledged that his motion was 22 untimely.See Lin Zhong v. U.S. Dep’t of Justice , 480 F.3d 23 104, 119-20 (2d Cir. 2007). 24 2Additionally, to warrant equitable tolling, an alien 1 must demonstrate ineffective assistance of counsel by 2 showing that competent counsel would have acted otherwise, 3 and that he was prejudiced by his counsel’s performance, 4 none of which Konate has alleged. See Rashid v. Mukasey, 5 533 F.3d 127, 131 (2d Cir. 2008). Even if Konate had 6 alleged ineffective assistance of counsel, however, no 7 prejudice resulted from his counsel’s actions because the 8 BIA did not err in determining that Konate’s new evidence 9 did not demonstrate that he had testified truthfully at his 10 original merits hearing and thus established good moral 11 character for the purposes of eligibility for cancellation 12 of removal. See Rabiu v. INS, 41 F.3d at 879, 882 (2d Cir. 13 1994);Jian Yun Zheng v. U.S. Dep’t of Justice , 409 F.3d 43, 14 48 n.2 (2d Cir. 2005). 15 Finally, we lack jurisdiction to review the BIA’s 16 discretionary decision not to reopen Konate’s proceedings 17 sua sponte

. See Ali , 448 F.3d at 518. 18 For the foregoing reasons, the petition for review is 19 DENIED. As we have completed our review, any stay of 20 removal that the Court previously granted in this petition 21 is VACATED, and any pending motion for a stay of removal in 22

3this petition is DISMISSED as moot. Any pending request for 1 oral argument in this petition is DENIED in accordance with 2 Federal Rule of Appellate Procedure 34(a)(2) and Second 3 Circuit Local Rule 34.1(b). 4
FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk 6

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