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.

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 16th 4 day of July, two thousand thirteen.

5

6 PRESENT:

7 JOSÉ A. CABRANES,

8 RAYMOND J. LOHIER, JR.,

9 SUSAN L. CARNEY,

10 Circuit Judges.

11 _____________________________________

12

13 MOUSSA KONATE,

14 Petitioner, 

15

16 v. 12-64

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Jamie B. Naini, Memphis, TN.

24

25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

26 Attorney General; Richard Evans,

27 Assistant Director; Brooke M.

28 Maurer, Trial Attorney, Office of

29 Immigration Litigation, United

30 States Department of Justice,

31 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 Moussa Konate, a native and citizen of Mali,

6 seeks review of a December 9, 2011, decision of the BIA

7 denying his motion to reopen his removal proceedings, In re

8 Moussa Konate, No. A094 824 565 (B.I.A. Dec. 9, 2011). We

9 assume the parties’ familiarity with the underlying facts

10 and procedural history in this case.

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

12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517

13 (2d Cir. 2006) (per curiam). Here, it is undisputed that

14 Konate’s motion to reopen was filed one day past the ninety15 day filing period for a motion to reopen. See 8 C.F.R. 

16 § 1003.2(c)(2). Therefore, the BIA did not abuse its

17 discretion in denying Konate’s motion to reopen as untimely. 

18 Konate argues on appeal that the BIA should have considered

19 whether he was entitled to equitable tolling of the filing

20 deadline. However, this claim is unexhausted, as before the

21 BIA Konate neither asserted that he was entitled to

22 equitable tolling nor acknowledged that his motion was

23 untimely. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d

24 104, 119-20 (2d Cir. 2007). 

2
1 Additionally, to warrant equitable tolling, an alien

2 must demonstrate ineffective assistance of counsel by

3 showing that competent counsel would have acted otherwise,

4 and that he was prejudiced by his counsel’s performance,

5 none of which Konate has alleged. See Rashid v. Mukasey,

6 533 F.3d 127, 131 (2d Cir. 2008). Even if Konate had

7 alleged ineffective assistance of counsel, however, no

8 prejudice resulted from his counsel’s actions because the

9 BIA did not err in determining that Konate’s new evidence

10 did not demonstrate that he had testified truthfully at his

11 original merits hearing and thus established good moral

12 character for the purposes of eligibility for cancellation

13 of removal. See Rabiu v. INS, 41 F.3d at 879, 882 (2d Cir.

14 1994); Jian Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d 43,

15 48 n.2 (2d Cir. 2005). 

16 Finally, we lack jurisdiction to review the BIA’s

17 discretionary decision not to reopen Konate’s proceedings

18 sua sponte. See Ali, 448 F.3d at 518. 

19 For the foregoing reasons, the petition for review is

20 DENIED. As we have completed our review, any stay of

21 removal that the Court previously granted in this petition

22 is VACATED, and any pending motion for a stay of removal in

3
1 this petition is DISMISSED as moot. Any pending request for

2 oral argument in this petition is DENIED in accordance with

3 Federal Rule of Appellate Procedure 34(a)(2) and Second

4 Circuit Local Rule 34.1(b).

5 FOR THE COURT: 

6 Catherine O’Hagan Wolfe, Clerk

4