NOT RECOMMENDED F OR P UBLICATION File Na me: 11a0513n.06 No. 10-3415 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

HADI R GORGI S NANNOSHI , Petitioner,

v.

ERI C HOL DER, J R., Attorney Gene ral Respondent. ) ) ) ) ) ) ) ) ) ) PETI TI ON F OR REVI EW OF AN ORDER OF TH E BO ARD OF I MMI GRATI ON APPEAL S

Before: SILER, COLE , and KETHL EDGE, Circ uit Jud ges. SILE R , Circuit J udg e. Hadir Go rg is Nannoshi (“N annoshi”), native and citizen of I raq, petitions for revie w of a Boa rd of I mmigra

tion Appea ls (“B I A”) order denying his motion to reope n his removal proc eeding s. For the following rea sons, we DENY the petition. I. Nannoshi enter ed the United States in 1981 as a leg al perma nent resident (“L PR”). I n 1994, he pled g uilty to attempt ed cr i m i n al sexual conduct in the t hird deg ree (victim older than thirteen y ea rs of ag e but less than six teen) in violation of Mich. Comp. L aws §§ 750.92 and 750.520 (d ). United S tates I mmigration and C ustoms Enforc ement (“I CE”) late r initiated remova l proce eding s ag ainst Nannoshi pursuant to I m m i gra t i o n and Nationality Act (“I NA”) §§ 237(a) (2)( A)(iii) and 236(a) (2)( A)(iii), based on his pr ior conviction of an a g g ravated fe lony rela ting to se x ual abuse of a minor.At his initial hear ing befor e the immigra tion judge (“ I J ”), I CE produce d Nannoshi’s

conviction re cord. N annoshi’s counse l, Bria n Casterline, conce ded the c onviction but denied that it constitut ed an ag g ravated felony

. Casterline then r equeste d time to look int o whether Nannoshi was eligible for waiver under former I NA § 212(c) , 8 U.S.C. § 1182(c) (1994), and the I J g rante d him six ty day s to investigate the ava ilable re lief. At the second hear ing, Nannoshi, throug h Casterline, applied for canc ellation of remova l as

an L PR under I

NA § 240a(b) (1), 8 U.S.C. § 1229b(b)( 1), and a waiver of deporta bility under I

NA § 212(c)

. Casterline argued that Nann o s h i wa s el i g ible for a waiver under § 212(c) beca use he pleade d g uilty to his conviction. The I J sug g ested t h at C as terline further investigate Nannoshi’s options for relief and rea d In re Blake, 23 I

. & N. Dec

. 722 (B I A 2005), which held an L PR ineligible for a § 212(c) waive r beca use sexual abuse of a minor was an ag g ravated felony that had “no statutory counter part in sec tion 212(a) g rounds of inadmissability .” Id. at 723. At the third hear ing, Nannoshi, throug h Casterline, soug ht canc ellation of remova l as an L PR under I NA § 240a(b) (1); withholding of remova l under I NA § 241(b)( 3); defe rra l of remova l pursuant to the United Nations Convention Ag ainst Torture (“CAT” ), 8 C.F.R. § 1208.17; a waiver of deporta

bility under I

NA 212(c) ; and voluntary depar ture pursuant to I

NA § 240B( b), 8 U.S.C. § 229c(b)

. The g overnme nt contended tha t Nannoshi was only elig ible for defe rra l unde r CAT, due to his conviction for an ag g ravated felony and the lack of a corr esponding char g e of inadmissability pursuant to Blake , 23 I . & N . Dec . 722. I t was not until the fourth hear ing that Casterline conce ded Nannoshi’s s t at u s as an ag g rava ted fe lon and his ineligibility for a § 212(c) waiver

under Blake. Casterline a lso conce ded to the g overnmen t ’s position that Nannoshi was only elig ible for defe rra l of remova l pursuant to

-2-CAT. He then reque sted an adjournment to seek elig ibilit y beca use Nannoshi had been marrie d in J u l y 2007. The I J denied the reque st, beca use there was no I -30 petition on file and he di d n o t believe Nannoshi would be elig ible for an ad j u s t m ent of status due to his ag g ravated felony conviction. The I J then hear d Nannoshi’s argum en t fo r defe rra l of remova l and denied his application. On October 17, 2007, Nannoshi, repr esente d by Casterline, appea led the I J ’s decision to the BI A and stated that he intended to file a separ ate brief. The BI A g ave him until J anuar y 2, 2008 to submit a brief. On J anuar y 2, 2008, Casterline reque sted an additional 21 day s to submit the brief, and his reque st was g rante d. On Fe b ru ar y 13, 2008, I CE counsel filed a motion for summary dismiss al of Nannoshi’s appea l beca use no brief had been filed with the court. On Marc h 13, 2008, Nannoshi’s new counsel, Namir Da m an , re quested a new date to file a brief. On April 7, 2008, another lawy er from Daman’ s firm, Eman J ajonie-D aman, filed a motion to acc ept a late-f iled brief. On April 18, 2008, the BIA denied the motion to acc ept the untimely brief, stating that there

was insufficient rea son to acc ept the late brief. See 8 C.F.R. § 1003.3(c) (1). On Dec ember 22, 2008, the BI A summarily dismiss ed the appea l, noting that the statement provided in the notice of appea l failed to “ meaning fully

apprise this B oard of

the re asons under ly ing the appea l.” Nannoshi, ag ain repr esente d b y n ew counsel, filed an untimely motion to reope n with the BI A claiming that he had rec eived ineffe ctive assistance of both trial and appellate counsel. The BI A denied the motion beca

use it was untimely and Nannoshi failed to demonstrate an exception to the timely filing require ments. Specifica lly , the BI A found t h at he had not demonstrated that he was prejudice d by the actions of his counsel beca use, due to his ag g ravated felony conviction, Nannoshi

was ineligible for almost all forms of relief except for defe rra l of remova l under CAT. The BI A then

-3-found that Nannoshi failed to de monstrate, and the rec ord failed to support, that he was entitled to

defe rra l of remova l under CAT. II. On appea l, Nannoshi asser ts that the BI A should have equitably tolled his time for filing the motion to reope n beca

use he was prejudice d by the ineffe ctiveness of his trial and appellate counsel. See M ezo v. H older , 615 F.3d 616, 620 ( 6th Cir. 2010); Barry v. Mukase y , 524 F.3d 721, 725 (6th Cir. 2008) (noting that we have declined to equitably toll filing periods for ineffe ctive assistance of counsel whe re pr ejudice is not established)

. A. Standard of

Review We revie w the BIA’s denial of the motion to reope n for abuse of discretion. See Barry , 524 F.3d at 724. The BIA abuses its discretion when its denial “wa s made without a rational explanation, inexpl icably depar

ted from es tablished policies, or rested on an impermissible basis such as invidious discrimination ag ainst a particula r rac e or g roup.” Id. (quoting Haddad v. Gonzales , 437 F. 3 d 5 1 5 , 517 (6th Cir. 2006)). The BI A has “broa d discretion to g rant or deny such mot i o n s . ” Alizoti v. Gonzales , 477 F.3d 448, 451 (6th Cir. 2007). Her e, Nannoshi’s sole argument that the BI A abused its d i s cr et i o n i s that it err ed in concluding he was not prejudice d by his counsels’ ineffe ctiveness. B. Inef fective Assistance of Cou nsel Nannoshi contends that his Fifth Amendment rig ht to counsel was violated by the ineffe ctive assistance provided by his counsel at trial, as well as by the counsel he reta ined on appea l. He claims that trial counsel err ed by conce ding that Nannoshi was ineligible for relief under § 212(c) based on his ag g ravated felony conviction. Simi larly , Nannoshi claims that his appellate counsel err ed by

-4-failing to file a timely brief arguing that trial counsel err ed in conce ding Nannosh i ’s i n eli g ibilit y

under § 212(c)

. Nannoshi argues that, as a result, the BI A should have equitably tolled the time for filing a motion to reope n beca

use he was otherwise preve nted from making a succe ssful arg ument reg arding his eligibility

for r elief f

rom deporta tion. A petitioner’s rig ht to counsel in deporta tion proce eding s is g rounded in the Fift h Amendment g uara

ntee of due proce ss. See Ikharo v. Holder , 614 F.3d 622, 630 (6th Cir. 2010). To establish a due proce ss violation in an immigra tion hear ing, the petitioner must show that h e was prejudice d by the alleg ed ineffe ctiveness of his counsel. Id .; In re Assad , 23 I

. & N. Dec

. 553, 556 (B I A 2003). Thus, when revie wing an alleg ed due proce ss violation, we look first at whether there

was a defe ct in the remova l proce eding , and second, whether the alien was prejudice d beca use of it. Ikharo , 614 F.3d a t 630-31. Prior to its repe al, § 212(c ) p rovi ded the Attorney Gene ral with discretion to waive deporta tion when an alien met cer tain criter ia. I n INS v. St. Cyr , 533 U.S. 289 (2001), the Supreme Court held that § 21 2 ( c ) r e li e f r emains available for aliens “whose convictions wer e obtained throug h plea ag ree ments and who, notwithstanding those convictions, would have been elig ible for § 212(c) relief at the time of their plea under the law then in e ffe ct.” Id. at 326. Be cause Nannoshi enter ed his g uilty plea in 1994, prior to the 1997 cutoff- date provided in 8 C.F.R. § 1212.3(h)( 2), he contends that he is elig ible to seek a § 212(c) waiver

. Nannoshi was ineligible for the waiver , howeve r, beca use his conviction for sexual abuse of

a minor qualified as an ag g ravated felony under 8 U.S.C. § 1101(a) (43)( A), and this conviction does not have a statutory counter par t i n § 212(a) , 8 U.S.C. § 1182(a)

. See 8 C.F.R. § 1212.3(f) (5); Koussan v. Holder , 556 F.3d 403, 408- 09 (6th Cir. 2009).

-5-Nannoshi contends that Gutierrez-Almazan v. Gonzal es , 4 9 1 F.3d 341 (7th Cir. 2007),

supports hi s p ro p osition that there need not be a substantially simil ar g round of exclusion and deporta tion for him to be entitled to § 2 1 2 (c ) relief. Howeve r, his arg ument is contra

ry to our prec edent in Koussan , and we have pointed out that “ [n] umerous cour ts have he ld there must be a compar abl e ground of exclusion for an alien in deporta tion proce eding s to be elig ible for section 212(c) relief

.” 556 F.3d at 409 (quoting Gjonaj v. INS , 47 F.3d 824, 827 (6th Cir. 1995)). Acc ording ly , we c annot cha ng e this well-esta

blished rule. 1 Be cause Nannoshi cannot show that he was elig ible for § 212(c) relief , he was not prejudice d by trial counsel’s conce ssion or appellate counsel’s failure to raise the argument on appea l. Absent a showing of prejudice , his claims of i neff ective ass i s t an ce of counsel fail. Acc ording ly , the BI A did not abuse its discretion by deny ing N annoshi’s untimely

motion to reopen. REVIEW DENIED.

T he Supr eme Cour t has grant ed cer t i o r ar i to re view the pro per app li cat ion of § 212( c) to LPRs 1 dep ort ed as a re sul t of agg ra vated fe lon y con victi ons . See Jud ula ng v. Holder , 249 F. App’x 499 (9t h Cir. 2007 ), cer t. g ran te d , 79 USLW 3672 (U.S . Apr il 18, 2011 ) ( No. 10

- 694)

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