Opinion
No. 08-2746-ag.
April 30, 2010.
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.
Musa Hodzic, pro se.
Safeta Hodzic, pro se.
Azra Hodzic, pro se.
Tony West, Assistant Attorney General; Russell J.E. Verby, Senior Litigation Counsel; Carmel A. Morgan, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.
PRESENT: JOSE A. CABRANES, DEBRA ANN LIVINGSTON, GERARD E. LYNCH, Circuit Judges.
SUMMARY ORDER
Petitioners, natives and citizens of Montenegro, seek review of a May 16, 2008, order of the BIA denying their motion to reopen, Iu re Hodzic, Nos. A095 377 065/066/067 (B.I.A. May 16, 2008). 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, mindful of the Supreme Court's admonition that such motions are "disfavored." All v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v. Doherty, 502 U.S. 314, 322-23, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992)). We review for substantial evidence the BIA's evaluation of country conditions evidence submitted with a motion to reopen. Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
A party may file only one motion to reopen removal proceedings, and must do so no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened. 8 C.F.R. § 1003.2(c)(1), (2). It is beyond dispute that Petitioners' motion to reopen was untimely. However, the time and number limitations do not apply to a motion to reopen that is "based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing." 8 C.F.R. § 1003.2(c)(3)(ii). The time limit may also be equitably tolled if there is a claim for ineffective assistance of counsel, and the petitioner demonstrates both that counsel's performance prejudiced the outcome of the proceeding, and that he exercised due diligence in pursuing the case. Iavorski v. INS, 232 F.3d 124, 135 (2d Cir. 2000).
The BIA did not abuse its discretion in finding that Petitioners were not entitled to equitable tolling of the filing period due to ineffective assistance of counsel. See Rubin v. INS, 41 F.3d 879, 882-83 (2d Cir. 1994) (holding that, in order to be entitled to equitable tolling, a petitioner must demonstrate that counsel's performance was so poor as to impinge on the fundamental fairness of the proceedings). As the BIA found, Petitioners could not establish prejudice because they did not seek new representation until after their orders of removal were administratively final and the deadline for filing both a motion to reopen and a petition for review had passed. See id.
The BIA also did not abuse its discretion in finding that Petitioners failed to demonstrate changed conditions in Montenegro. See Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006) (holding that the Board is not required to "expressly parse or refute . . . each individual . . . piece of evidence offered by the petitioner"). The BIA reasonably found that the evidence Petitioners submitted showed a continuation of the same conditions that had prevailed during their merits hearing, and arguably showed an improvement. Thus, the BIA's decision is supported by substantial evidence. See 8 U.S.C. § 1229a(c)(7)(C)(ii); Jian Hui Shao, 546 F.3d at 169.
Finally, we lack jurisdiction to review Petitioners' argument that the BIA erred in refusing to reopen their proceeding sua sponte under 8 C.F.R. § 1003.2(a), because such a decision is "entirely discretionary." See Azmond Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006); see also Kucana v. Holder, ___ U.S. ___ n. 18, 130 S.Ct. 827, 839 n. 18, ___ L.Ed.2d ___ n. 18 (2010).
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).