Filed: May 03, 2016
Latest Update: Mar. 02, 2020
Summary: 15-580 Kudishev v. Lynch BIA Page, IJ A078 521 004 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 NOTA
Summary: 15-580 Kudishev v. Lynch BIA Page, IJ A078 521 004 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 NOTAT..
More
15-580
Kudishev v. Lynch
BIA
Page, IJ
A078 521 004
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 3rd day of May, two thousand sixteen.
5
6 PRESENT:
7 REENA RAGGI,
8 RICHARD C. WESLEY,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 GENNADY KUDISHEV, AKA GENNADI
14 KUDISHEV, AKA GENNADY GAVRILETS,
15 AKA GENNADIY ANDREYEVICH
16 GAVRILETS,
17 Petitioner,
18
19 v. 15-580
20 NAC
21 LORETTA E. LYNCH, UNITED STATES
22 ATTORNEY GENERAL,
23 Respondent.
24 _____________________________________
25
26 FOR PETITIONER: Regis Fernandez, Esq., Newark, New
27 Jersey.
28
29 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
1 Assistant Attorney General, Mary
2 Jane Candaux, Assistant Director,
3 Matthew A. Connelly, Trial Attorney,
4 Office of Immigration Litigation,
5 United States Department of Justice,
6 Washington, D.C.
7
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review is
11 DENIED.
12 Petitioner Gennady Kudishev, a native of Uzbekistan and
13 citizen of the Russian Federation, seeks review of a February
14 19, 2015 decision of the BIA denying his motion to reopen. In
15 re Gennady Kudishev, No. A078 521 004 (B.I.A. Feb. 19, 2015).
16 We assume the parties’ familiarity with the underlying facts
17 and procedural history in this case.
18 We review the BIA’s denial of a motion to reopen for abuse
19 of discretion, “mindful that motions to reopen ‘are
20 disfavored.’” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006)
21 (quoting INS v. Doherty,
502 U.S. 314, 322-23 (1992)). An alien
22 seeking to reopen proceedings may move to reopen no later than
23 90 days after the final administrative decision is rendered.
24 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). This
2
1 limitations period may be equitably tolled to accommodate a
2 claim of ineffective assistance of counsel. See Rashid v.
3 Mukasey, 533 F.3d 127, 130 (2d Cir. 2008). To decide whether
4 a claim warrants equitable tolling, we engage in a two-step
5 inquiry: first, we determine “whether and when the ineffective
6 assistance ‘[was], or should have been, discovered by a
7 reasonable person in the situation.’ Then, petitioner bears
8 the burden of proving that he has exercised due diligence in
9 the period between discovering the ineffectiveness of his
10 representation and filing the motion to reopen.” Jian Hua Wang
11 v. BIA,
508 F.3d 710, 715 (2d Cir. 2007) (quoting Iavorski v.
12 INS,
232 F.3d 124, 134 (2d Cir. 2000)). The petitioner must
13 demonstrate “due diligence” in pursuing a claim “during the
14 entire period he . . . seeks to toll.”
Rashid, 533 F.3d at 132.
15 Kudishev’s petition fails this inquiry. In denying his
16 motion to reopen, the BIA reasoned that Kudishev knew, or should
17 have known, during his removal proceedings “of the possibility
18 of removal to Russia and that his prior counsel waived an
19 application for asylum.” App’x 3. That conclusion is
20 supported by the record. It was clear throughout the
21 immigration court proceedings that Russia was a possible
3
1 country of removal. During a November 2005 hearing, Kudishev
2 declined to designate a country of removal, and the Government
3 designated Uzbekistan with an alternative to the Russian
4 Federation. It was also clear that Kudishev waived any
5 application for asylum, withholding of removal, and United
6 Nations Convention Against Torture (“CAT”) relief. At the
7 November 2005 hearing, the immigration judge (“IJ”) warned that
8 if Kudishev failed to submit the application form, then the IJ
9 would assume he waived the application. At a February 2006
10 hearing, Kudishev’s attorney confirmed that Kudishev waived the
11 application. And at a December 2008 hearing, the IJ asked
12 Kudishev, “What if you had to go to Russia, the Federation, not
13 Uzbekistan?” Admin. Record 562. Having just described his
14 lack of business connections in Uzbekistan, Kudishev responded:
15 “I think Russia is even more dire condition. It’s even worse
16 than, than over there. Because in Russia they would, they would
17 just fire people, throw them out to the street with no prospects
18 of getting any work ever.” Id. Thus, given the opportunity
19 to voice a fear of physical harm upon returning to Russia,
20 Kudishev did not, thereby confirming his prior waiver.
21 Finally, the IJ’s December 2010 written decision ordered
4
1 Kudishev removed to Russia and listed his applications for
2 relief, which did not include CAT relief. On this record, the
3 BIA acted within its discretion in determining that Kudishev
4 did not exercise due diligence between when he should have
5 discovered the purported ineffectiveness (at the latest, in
6 December 2010) and when he filed his motion to reopen (in January
7 2015). See Jian Hua Wang, 508 F.3d at 715.
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, the stay of removal
10 that the Court previously granted in this petition is VACATED.
11 Any pending request for oral argument in this petition is DENIED
12 in accordance with Federal Rule of Appellate Procedure
13 34(a)(2), and Second Circuit Local Rule 34.1(b).
14 FOR THE COURT:
15 Catherine O=Hagan Wolfe, Clerk
5
