Narkaj v. Holder
Narkaj v. Holder
Opinion of the Court
SUMMARY ORDER
Petitioners seek review of the July 2, 2008 order of the BIA denying their motion to reopen. In re Mirash Narkaj and Pranvera Narkaj, Nos. A75 559 665/666 (B.I.A. July 2, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). Under 8 C.F.R. § 1003.2(c)(2), an individual must file a motion to reopen within 90 days of the entry of the final decision in the underlying proceeding. However, this time limitation may be equitably tolled where the motion to reopen is based on a claim of ineffective assistance of counsel. See Jin Bo Zhao v. INS, 452 F.3d 154, 158-59 (2d Cir. 2006) (per curiam). To merit equitable tolling based on ineffective assistance of counsel, an applicant must show that he exercised due diligence in pursuing the case during the period of time for which he seeks tolling. Iavorski v. INS, 232 F.3d 124, 134-35 (2d Cir. 2000); In re Compean, 24 I. & N. Dec. 710 (B.I.A. 2009).
In this case, there is no dispute that Petitioners’ motion to reopen was untimely. Moreover, the BIA did not abuse its discretion in declining to toll the time limitation on the motion based on their claim of ineffective assistance of counsel. The BIA properly found that Petitioners did not exercise due diligence and that equitable tolling was therefore not warranted. See Iavorski 232 F.3d at 134-35.
Whether a petitioner has exercised the requisite due diligence rests upon a two-part inquiry that first evaluates whether
In this case, Petitioners did not file their motion to reopen until April 8, 2008, almost two years after the final order of removal. Petitioners argue that the period for reopening should be equitably tolled because their former counsel was ineffective when she: (1) failed to explore whether Pranvera had a viable claim for asylum; (2) failed to adequately prepare Petitioners for the hearing; and (3) failed to call Pranvera as a witness at the hearing to corroborate Mirash’s story. However, Petitioners failed to demonstrate due diligence in pursuing their ineffective assistance of counsel claim given that (a) all of these alleged failures occurred before or during the merits hearing before the IJ, (b) Petitioners were represented by new counsel on appeal, and (c) they failed to bring any of these claims until almost two years after the final order of removal. See Jian Hua Wang, 508 F.3d at 715. Under these circumstances, the BIA did not abuse its discretion in finding that Petitioners failed to exercise due diligence in pursuing their ineffective assistance of counsel claim. See id.; Rashid, 533 F.3d at 131-32.
For the foregoing reasons, the petition for review is DENIED.
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