Filed: Apr. 30, 2010
Latest Update: Feb. 21, 2020
Summary: 08-2746-ag Hodzic v. Holder BIA A095 377 065 A095 377 066 A095 377 067 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 DAT
Summary: 08-2746-ag Hodzic v. Holder BIA A095 377 065 A095 377 066 A095 377 067 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 DATA..
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08-2746-ag
Hodzic v. Holder
BIA
A095 377 065
A095 377 066
A095 377 067
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 30 th day of April, two thousand ten.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DEBRA ANN LIVINGSTON,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 MUSA HODZIC, SAFETA HODZIC, AZRA HODZIC,
14 Petitioners,
15
16 v. 08-2746-ag
17 NAC
18 ERIC H. HOLDER, JR., * UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONERS: Pro Se.
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as the respondent in this case.
1 FOR RESPONDENT: Tony West, Assistant Attorney
2 General; Russell J.E. Verby, Senior
3 Litigation Counsel; Carmel A.
4 Morgan, Trial Attorney, Office of
5 Immigration Litigation, Civil
6 Division, United States Department
7 of Justice, Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 decision of the Board of Immigration Appeals (“BIA”), it is
11 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
12 review is DENIED.
13 Petitioners, natives and citizens of Montenegro, seek
14 review of a May 16, 2008, order of the BIA denying their
15 motion to reopen. In re Hodzic, Nos. A095 377 065/066/067
16 (B.I.A. May 16, 2008). We assume the parties’ familiarity
17 with the underlying facts and procedural history of this
18 case.
19 We review the BIA’s denial of a motion to reopen for
20 abuse of discretion, mindful of the Supreme Court’s
21 admonition that such motions are “disfavored.” Ali v.
22 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.
23 Doherty,
502 U.S. 314, 322-23 (1992)). We review for
24 substantial evidence the BIA’s evaluation of country
25 conditions evidence submitted with a motion to reopen. Jian
26 Hui Shao v. Mukasey,
546 F.3d 138, 169 (2d Cir. 2008).
2
1 A party may file only one motion to reopen removal
2 proceedings, and must do so no later than 90 days after the
3 date on which the final administrative decision was rendered
4 in the proceeding sought to be reopened. 8 C.F.R.
5 § 1003.2(c)(1),(2). It is beyond dispute that Petitioners’
6 motion to reopen was untimely. However, the time and number
7 limitations do not apply to a motion to reopen that is
8 “based on changed circumstances arising in the country of
9 nationality or in the country to which deportation has been
10 ordered, if such evidence is material and was not available
11 and could not have been discovered or presented at the
12 previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). The time
13 limit may also be equitably tolled if there is a claim for
14 ineffective assistance of counsel, and the petitioner
15 demonstrates both that counsel’s performance prejudiced the
16 outcome of the proceeding, and that he exercised due
17 diligence in pursuing the case. Iavorski v. INS, 232 F.3d
18 124, 135 (2d Cir. 2000).
19 The BIA did not abuse its discretion in finding that
20 Petitioners were not entitled to equitable tolling of the
21 filing period due to ineffective assistance of counsel. See
22 Rabiu v. INS,
41 F.3d 879, 882-83 (2d Cir. 1994) (holding
3
1 that, in order to be entitled to equitable tolling, a
2 petitioner must demonstrate that counsel’s performance was
3 so poor as to impinge on the fundamental fairness of the
4 proceedings). As the BIA found, Petitioners could not
5 establish prejudice because they did not seek new
6 representation until after their orders of removal were
7 administratively final and the deadline for filing both a
8 motion to reopen and a petition for review had passed. See
9 id.
10 The BIA also did not abuse its discretion in finding
11 that Petitioners failed to demonstrate changed conditions in
12 Montenegro. See Wei Guang Wang v. BIA,
437 F.3d 270, 275
13 (2d Cir. 2006) (holding that the Board is not required to
14 “expressly parse or refute . . . each individual . . . piece
15 of evidence offered by the petitioner”). The BIA reasonably
16 found that the evidence Petitioners submitted showed a
17 continuation of the same conditions that had prevailed
18 during their merits hearing, and arguably showed an
19 improvement. Thus, the BIA’s decision is supported by
20 substantial evidence. See
21 8 U.S.C. § 1229a(c)(7)(C)(ii); Jian Hui
Shao, 546 F.3d at
22 169.
4
1 Finally, we lack jurisdiction to review Petitioners’
2 argument that the BIA erred in refusing to reopen their
3 proceeding sua sponte under 8 C.F.R. § 1003.2(a), because
4 such a decision is “entirely discretionary.” See Azmond Ali
5 v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006); see also
6 Kucana v. Holder,
130 S. Ct. 827, 839 n.18 (2010).
7 For the foregoing reasons, the petition for review is
8 DENIED. As we have completed our review, any stay of
9 removal that the Court previously granted in this petition
10 is VACATED, and any pending motion for a stay of removal in
11 this petition is DISMISSED as moot. Any pending request for
12 oral argument in this petition is DENIED in accordance with
13 Federal Rule of Appellate Procedure 34(a)(2), and Second
14 Circuit Local Rule 34.1(b).
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
5
