11-2760-ag
    Soumalia v. Holder
                                                                                  BIA
                                                                          A077 547 856
                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                SUMMARY ORDER
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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 29th day of May, two thousand twelve.

    PRESENT:
             JON O. NEWMAN,
             ROBERT A. KATZMANN,
             DENNY CHIN,
                  Circuit Judges.
    _______________________________________

    SEYNI SOUMALIA,
             Petitioner,

                         v.                                11-2760-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:                Seyni Soumalia, pro se, New York,
                                   New York.

    FOR RESPONDENT:                Tony West, Assistant Attorney
                                   General; Luis E. Perez, Senior
                                   Litigation Counsel; Edward C.
                                   Durant, Attorney, Office of
                                   Immigration Litigation, United
                                   States Department of Justice,
                                   Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

decision of the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

review is DENIED.

    Seyni Soumalia, a native and citizen of Mauritania,

seeks review of a June 6, 2011, decision of the BIA denying

his motion to reopen.     In re Seyni Soumalia, No. A077 547

856 (B.I.A. June 6, 2011).     We assume the parties’

familiarity with the underlying facts and procedural history

of this case.

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

abuse of discretion.     See Jian Hui Shao v. Mukasey, 

, 168-69 (2d Cir. 2008).     An alien must file a motion to

reopen within 90 days of the agency’s final administrative

decision.   8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.

§ 1003.2(c)(2).     Soumalia’s motion to reopen was

indisputably untimely because it was filed more than six

years after his order of removal became final.        See 8 U.S.C.

§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).

    Moreover, the BIA did not err in declining to equitably

toll the time period for filing Soumalia’s motion to reopen

based on his ineffective assistance of counsel claim.       In

order to warrant equitable tolling, even assuming that a


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movant demonstrated that prior counsel was ineffective, an

alien is required to demonstrate “due diligence” in pursuing

his claim during “both the period of time before the

ineffective assistance of counsel was or should have been

discovered and the period from that point until the motion

to reopen is filed.”   Rashid v. Mukasey, 

, 131

(2d Cir. 2008); see also Cekic v. INS, 

, 170 (2d

Cir. 2006).   The BIA did not err in finding that Soumalia

failed to demonstrate that he exercised due diligence

because he did not assert before the BIA that he took any

actions to pursue his case from 2007, when he discovered

that his removal proceedings were closed, to 2010, when he

hired an attorney to file his motion to reopen.   See Jian

Hua Wang v. BIA, 

, 715 (2d Cir. 2007).

    We may not consider, or remand for the BIA to consider,

Soumalia’s assertion and supporting evidence that he

exercised due diligence in 2007 by hiring a third attorney

who provided him with ineffective assistance of counsel

because he did not raise this issue or present this evidence

to the BIA.   See 8 U.S.C. § 1252(b)(4)(A) (providing that

“the court of appeals shall decide the petition only on the

administrative record on which the order of removal is

based”); see also Xiao Xing Ni v. Gonzales, 

,

                              3
269-70 (2d Cir. 2007) (holding that any inherent power to

remand “should not” be exercised when “[i] the basis for the

remand is an instruction to consider documentary evidence

that was not in the record before the BIA; and [ii] the

agency regulations set forth procedures to reopen a case

before the BIA for the taking of additional evidence.”); Lin

Zhong v. U.S. Dep’t of Justice, 

, 124 (2d Cir.

2007) (recognizing that, although issue exhaustion is not a

jurisdictional requirement, failure to exhaust specific

issues is mandatory).

    For the foregoing reasons, the petition for review is

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

removal that the Court previously granted in this petition

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

this petition is DISMISSED as moot. Any pending request for

oral argument in this petition is DENIED in accordance with

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

Circuit Local Rule 34.1(b).

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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