Filed: Sep. 27, 2010
Latest Update: Feb. 21, 2020
Summary: 09-4828-ag Nicaj v. Holder BIA A073 558 250 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 “S
Summary: 09-4828-ag Nicaj v. Holder BIA A073 558 250 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 “SU..
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09-4828-ag
Nicaj v. Holder
BIA
A073 558 250
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 27 th day of September, two thousand ten.
5
6 PRESENT:
7 REENA RAGGI,
8 RICHARD C. WESLEY,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _______________________________________
12
13 ALTIN NICAJ,
14 Petitioner,
15
16 v. 09-4828-ag
17 NAC
18 ERIC H. HOLDER, JR., U.S. ATTORNEY
19 GENERAL,
20 Respondent.
21 ______________________________________
22
23
24 FOR PETITIONER: Sokol Braha, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney General,
27 Ernesto H. Molina, Jr., Assistant
28 Director, Jamie M. Dowd, Senior
29 Litigation Counsel, Office of
30 Immigration Litigation, Civil
31 Division, United States Department of
32 Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
4 review is DENIED.
5 Petitioner Altin Nicaj, a native and citizen of Albania,
6 seeks review of the October 26, 2009, order of the BIA
7 denying his motion to reopen. In re Altin Nicaj, No. A 073
8 558 250 (B.I.A. Oct. 26, 2009). We assume the parties’
9 familiarity with the underlying facts and procedural history
10 of the case.
11 The BIA did not abuse its discretion in denying Nicaj’s
12 untimely and number-barred motion to reopen. See Ali v.
13 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). Motions to
14 reopen in absentia orders are governed by different rules
15 depending on whether the movant seeks to rescind the order or
16 present new evidence. See Song Jin Wu v. INS,
436 F.3d 157,
17 163 (2d Cir. 2006). Because Nicaj sought reopening based on
18 new evidence, we analyze the motion under the general motion
19 to reopen procedures set forth in 8 C.F.R. §§ 1003.2(c),
20 1003.23(b). The regulations provide that “a party may file
21 only one motion to reopen deportation or exclusion
22 proceedings . . . and that motion must be filed no later than
2
1 90 days after the date on which the final administrative
2 decision was rendered in the proceeding sought to be
3 reopened, or on or before September 30, 1996, whichever is
4 later.” 8 C.F.R. § 1003.2(c)(2). Nicaj does not dispute
5 that his April 2009 motion was untimely and number-barred.
6 Rather, he argues that the BIA should have tolled the time
7 limitations to accommodate his ineffective assistance of
8 counsel claim.
9 In order to warrant equitable tolling, an alien is
10 required to demonstrate “due diligence” in pursuing his
11 claims during “both the period of time before the ineffective
12 assistance of counsel was or should have been discovered and
13 the period from that point until the motion to reopen is
14 filed.” Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008);
15 see also Cekic v. INS,
435 F.3d 167, 170 (2d Cir. 2006)
16 (requiring an affirmative demonstration of the exercise of
17 due diligence). The BIA did not abuse its discretion in
18 declining to equitably toll the filing deadline for Nicaj’s
19 motion to reopen because, as it found, he failed to
20 demonstrate that he exercised due diligence in pursuing his
21 ineffective assistance claim, as his motion was filed more
22 than 90 days after his discovery of his ineffective
3
1 assistance claim. Rashid, 533 F.3d at 132.
2 Nicaj argues that the BIA’s decision was “devoid of any
3 reasoning” and he demonstrated that he exercised due
4 diligence because he “never stopped pursuing his immigration
5 matters ... and actively tried to obtain lawful status.”
6 Nicaj’s argument is without merit. As the BIA noted,
7 although Nicaj met his current attorney in May 2008 and a
8 letter from his current attorney indicates that he discovered
9 his first attorney’s ineffective representation prior to
10 December 2008, he did not file his motion to reopen until
11 April 2009. Moreover, contrary to Nicaj’s argument that he
12 has been diligent in pursuing his immigration matters over
13 the past decade, that explanation does not address the BIA’s
14 specific finding that he did not exercise due diligence in
15 filing his ineffective assistance claim against his first
16 attorney. 1 Under these circumstances, we find no error in
1
In his brief, Nicaj argues that he received
ineffective assistance of counsel from several
(identified and unidentified) prior attorneys that he had
purportedly retained to assist him with various
immigration matters over the past decade. However, as
the BIA found, although Nicaj “generally alleged
misconduct against [several prior attorneys] . . . he has
not claimed that reopening [was] warranted due to
ineffective assistance on the part of any attorney other
than [his first attorney], nor has he shown that he has
attempted compliance with [the Lozada requirements].”
4
1 the BIA’s conclusion that Nicaj did not exercise the
2 requisite due diligence. See Rashid, 533 F.3d at 132; Cekic,
3 435 F.3d at 170.
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of removal
6 that the Court previously granted in this petition is
7 VACATED, and any pending motion for a stay of removal in this
8 petition is DISMISSED as moot.
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
12
13
BIA op. at 2. We identify no error in that
determination. See Esposito v. INS, 987 F.2d 108, 110-11
(2d Cir. 1993) (explaining that Matter of Lozada, 19 I &
N Dec. 637 (BIA 1988), requires a successful ineffective
assistance of counsel claim be accompanied by: “(1) an
affidavit setting forth in detail the agreement with
former counsel concerning what action would be taken and
what counsel did or did not represent in this regard; (2)
proof that the alien notified former counsel of the
allegations of ineffective assistance and allowed counsel
an opportunity to respond; and (3) if a violation of
ethical or legal responsibilities is claimed, a statement
as to whether the alien filed a complaint with any
disciplinary authority regarding counsel’s conduct and,
if a complaint was not filed, an explanation for not
doing so”).
5
