Opinion
No. 09-4312-ag.
February 17, 2011.
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.
Marina Alexandrovich, Tempe, AZ, for Petitioner.
Tony West, Assistant Attorney General; Paul Fiorino, Senior Litigation Counsel; Judith R. O'Sullivan, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.
Present: DENNIS JACOBS, Chief Judge, PETER W. HALL, and DEBRA ANN LIVINGSTON, Circuit Judges.
SUMMARY ORDER
Nikolai Krioutchkov, a native of the former Union of Soviet Socialist Republics and a citizen of Russia, seeks review of a September 17, 2009, order of the BIA denying his motion to reopen his removal proceedings. In re Nikolai Krioutchkov, No. A071 959 970 (B.I.A. Sept. 17, 2009). 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 Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). An alien who has been ordered removed may file one motion to reopen, but must do so within 90 days of the final administrative decision. See 8 U.S.C. § 1229a(c)(7). Here, the BIA did not abuse its discretion by denying Krioutchkov's motion to reopen as untimely and number-barred, as his motion was filed in March 2009, more than three years after the entry of his October 2005 final order of removal and the denial of his first motion to reopen. See id.; 8 C.F.R. § 1003.2(c)(2).
Under the doctrine of equitable tolling, ineffective assistance of counsel can extend the filing deadline for an alien's motion to reopen. See Cekic v. INS, 435 F.3d 167, 170-71 (2d Cir. 2006). In order to warrant equitable tolling, however, the alien is required to demonstrate that he exercised "due diligence" in pursuing his claims 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." See Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008). We have noted that "there is no period of time which we can say is perse unreasonable, and, therefore, disqualifies a petitioner from equitable tolling-or, for that matter, any period of time that is per se reasonable." Jian Hua Wang v. BIA 508 F.3d 710, 715 (2d Cir. 2007).
The BIA did not act arbitrarily or capriciously in concluding that Krioutchkov failed to demonstrate that he exercised due diligence during the three year period prior to filing his second motion to reopen. See id. Krioutchkov concedes that his prior counsel timely informed him that his appeal had been dismissed and that he knowingly remained in the United States despite the BIA's final order of removal. In his brief to the BIA, Krioutchkov did not explain why he did not follow up with his prior counsel at the time he was informed of the BIA's dismissal of his appeal or the denial of his first motion to reopen, actions which could have alerted him to his prior counsel's failure to file a brief to the BIA and the basis for the denial of reopening. See Rashid, 533 F.3d at 132, 132 n. 3 (holding that although this Court has recognized that aliens in deportation proceedings reasonably rely on "assurances [from counsel] that their case[s][are] being pursued," under certain circumstances, an alien can be expected to comprehend that he has received ineffective assistance without being explicitly told so by an attorney (internal quotation marks omitted) (alterations in Rashid,)). Accordingly, the BIA's due diligence finding was not an abuse of discretion. See Jian Hua Wang, 508 F.3d at 715. Because the BIA did not abuse its discretion in finding a lack of due diligence, we need not reach the merits of the underlying ineffective assistance claim. See Cekic, 435 F.3d at 170-171.
We decline to consider Krioutchkov's unexhausted and unsupported argument that "[his prior counsel] instructed [him] to wait till [sic] adjudication of the 1-130 immigration visa petition by [his] U.S. citizen wife." Petr.'s Br. 18. See Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 121-122 (2d Cir. 2007).
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. All other pending motions are DENIED. 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).