14-4124-ag
Rasid v. Lynch
                                                                                 BIA
                                                                         A072 796 699
                      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.

     At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
26th day of February, two thousand sixteen.

PRESENT:
         GUIDO CALABRESI,
         REENA RAGGI,
         SUSAN L. CARNEY,
              Circuit Judges.
_____________________________________

FARUQ RASID,
         Petitioner,

                 v.                                            14-4124-ag
                                                               NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
         Respondent.
_____________________________________

FOR PETITIONER:                    Anthony O. Egbase; Victoria T.
                                   Orafa, A.O.E. Law & Associates,
                                   Inc., Los Angeles, California.

FOR RESPONDENT:                    Benjamin C. Mizer, Principal Deputy
                                   Assistant Attorney General; Alison
                                   Marie Igoe, Senior Litigation
                               Counsel; Daniel I. Smulow, Trial
                               Attorney, Office of Immigration
                               Litigation, United States
                               Department of Justice, Washington,
                               D.C.

      UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review is

DENIED.

      Petitioner Faruq Rasid, a native and citizen of Bangladesh,

seeks review of an October 7, 2014, decision of the BIA denying

Rasid’s third motion to reopen removal proceedings.                In re

Faruq Rasid, No. A072 796 699 (B.I.A. Oct. 7, 2014).            We assume

the   parties’   familiarity    with      the   underlying    facts   and

procedural history in this case.

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

of discretion.    See Kaur v. BIA, 

, 233 (2d Cir.

2005).    An alien seeking to reopen proceedings may file one

motion to reopen no later than 90 days after the date on which

the final administrative decision was rendered.                 8 U.S.C.

§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).                There is no

dispute   that   Rasid’s    motion      was   otherwise   untimely    and

number-barred     because     his       order    of   removal     became
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administratively final when he failed voluntarily to depart in

January 2001, and it was his third such motion.

    In certain circumstances, the time period for filing a

motion to reopen may be equitably tolled upon an alien’s

demonstration of ineffective assistance of counsel.               See

Rashid   v.   Mukasey,   

,   130   (2d   Cir.   2008).

Nonetheless, we discern no abuse of discretion in the BIA’s

refusal to consider Rasid’s ineffective assistance claim.

Indeed, we previously rejected this claim on the merits in

reviewing Rasid’s petition for review of the BIA’s denial of

his first motion to reopen.      See Order, Rasid v. Holder, No.

12-4110-ag, Dkt. No. 52.         We dismissed the petition as

frivolous, concluding that the BIA had properly denied Rasid’s

ineffective assistance claim for failure to exercise due

diligence.    See 

to this decision because Rasid has failed to raise

new arguments or to present new evidence either to the BIA or

this Court.    See Johnson v. Holder, 

, 99 (2d Cir.

2009) (stating that law of the case doctrine requires adherence

to prior decision on issue in subsequent stage of same case).

A motion to reopen is not a vehicle to present previously
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rejected    arguments    on   the   basis        of    previously   available

evidence.     See 8 C.F.R. § 1003.2(c) (requiring that motion to

reopen be based on new and previously unavailable evidence).

    Rasid also argues that the BIA erred in declining to reopen

proceedings sua sponte because of the exceptional hardship his

family would suffer if he is removed.                 The claim fails because

we lack jurisdiction to review the BIA’s decision not to reopen

proceedings     sua   sponte,    as       this    decision     is   “entirely

discretionary.”       Ali v. Gonzales, 

, 518 (2d Cir.

2006).     Kucana v. Holder, 

(2010), cited by Rasid,

is not to the contrary, as the Supreme Court there stated that

it “express[ed] no opinion on whether federal courts may review

the Board’s decision not to reopen removal proceedings sua

sponte,” 

n.18.       Nor is there any indication here that

the BIA “may have declined to exercise its sua sponte authority

because it misperceived the legal background and thought,

incorrectly, that a reopening would necessarily fail,” such

that remand to the Agency for reconsideration in view of the

correct law would be appropriate.           Mahmood v. Holder, 

, 469 (2d Cir. 2009).


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    Accordingly, 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 of Court




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