Filed: Sep. 14, 2011
Latest Update: Feb. 22, 2020
Summary: 10-2336-ag Porras v. Holder BIA Montante, IJ A098 422 587 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 T
Summary: 10-2336-ag Porras v. Holder BIA Montante, IJ A098 422 587 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 TH..
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10-2336-ag
Porras v. Holder
BIA
Montante, IJ
A098 422 587
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 14th day of September, two thousand eleven.
5
6 PRESENT:
7 RALPH K. WINTER,
8 JOSÉ A. CABRANES,
9 ROBERT D. SACK,
10 Circuit Judges.
11 _____________________________________
12
13 YESENIA GRETTEL PORRAS,
14 Petitioner,
15 10-2336-ag
16 v. NAC
17
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Stephen A. Lagana, Stephen A Pegnam,
24 Lawrence, MA.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Leslie McKay, Assistant
28 Director; Anna Nelson, Trial
29 Attorney, Office of Immigration
30 Litigation, Civil Division, United
31 States Department of Justice,
32 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, Yesenia Grettel Porras, a native and
6 citizen of Costa Rica, seeks review of a May 28, 2010, order
7 of the BIA affirming the decision of an immigration judge
8 (“IJ”), denying her motion to reopen her removal
9 proceedings. In re Yesenia Grettel Porras, No. A098 422 587
10 (B.I.A. May 28, 2010), aff’g No. A098 422 587 (Immig. Ct.
11 N.Y. City June 3, 2008). We assume the parties’ familiarity
12 with the underlying facts and procedural history of the
13 case.
14 We review the agency’s denial of a motion to reopen for
15 abuse of discretion. Cekic v. INS, 435 F.3d 167, 170 (2d
16 Cir. 2006). An alien may only file one motion to reopen and
17 must do so within 90 days of the agency’s final
18 administrative decision. 8 C.F.R. § 1003.23(b). The motion
19 to reopen at issue was filed outside of this period as
20 Porras was ordered removed in 2005 and did not file the
21 motion until 2008.
22 Porras argues, however, that the agency abused its
23 discretion in denying her motion because the time limitation
2
1 should have been excused based on ineffective assistance of
2 counsel. The deadline for filing a motion to reopen may be
3 equitably tolled to accommodate claims of ineffective
4 assistance of counsel, so long as the movant has exercised
5 “due diligence” in vindicating her rights. See Cekic, 435
6 F.3d at 171. Here, the BIA did not abuse its discretion in
7 determining that Porras failed to exercise due diligence
8 because, although Porras had knowledge of her final order of
9 removal in 2005, she waited more than three years before
10 raising her ineffective assistance of counsel claim, did not
11 indicate any steps taken between June 2005 and April 2007 to
12 pursue her claim, and did not argue that she relied on any
13 assurances from her former counsel regarding her case. See
14 Rashid v. Mukasey,
533 F.3d 127, 132 (2d Cir. 2008) (holding
15 that petitioner failed to exercise due diligence when, after
16 he knew or should have known of his initial counsel’s
17 alleged ineffective assistance, he waited 14 months to
18 further pursue his case); Jian Hua Wang v. BIA,
508 F.3d
19 710, 715 (2d Cir. 2007) (holding that waiting 8 months after
20 the receipt of relevant documents did not demonstrate due
21 diligence). Cf.
Cekic, 435 F.3d at 169 (indicating that
22 petitioners could successfully toll a portion of the period
23 sought due to their “reliance upon their attorney’s repeated
24 assurances that their case was being pursued.”).
3
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any pending motion
3 for a stay of removal in this petition is DISMISSED as moot.
4 Any pending request for oral argument in this petition is
5 DENIED in accordance with Federal Rule of Appellate
6 Procedure 34(a)(2), and Second Circuit Local Rule
7 34.1(b).34.1(b).
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
10
4
