Ali v. Gonzales
Decision Date | 12 May 2006 |
Docket Number | Docket No. 04-4584-AG. |
Citation | 448 F.3d 515 |
Parties | Azmond ALI, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States,<SMALL><SUP>*</SUP></SMALL> Respondent. |
Court | U.S. Court of Appeals — Second Circuit |
Kai W. De Graaf, New York, NY, for Petitioner.
Dione M. Enea, Special Assistant United States Attorney (Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, and Steven Kim, Assistant United States Attorney, on the brief), United States Attorney's Office for the Eastern District of New York, Brooklyn, NY, for Respondent.
Before: WINTER, CABRANES, and RAGGI, Circuit Judges.
We consider here (1) whether the Board of Immigration Appeals ("BIA") abused its discretion in denying a motion to reopen removal proceedings on the basis that petitioner's motion was untimely and petitioner was not entitled to equitable tolling under Iavorski v. INS, 232 F.3d 124 (2d Cir.2000), because he failed to exercise due diligence in pursuing his case, and, as a matter of first impression in this Circuit, (2) whether we have jurisdiction to review the BIA's decision not to exercise its "sua sponte authority" to reopen removal proceedings under 8 C.F.R. § 1003.2(a)1—its decision not to exercise its authority to reopen removal proceedings on its own motions.
Azmond Ali, a native and citizen of Bangladesh, petitions this Court for review of an August 24, 2004 decision of the BIA denying his motion to reopen his immigration proceedings for the purpose of seeking an adjustment of status to that of lawful permanent resident. The BIA denied Ali's motion to reopen on the grounds that (1) the motion was "over 7 years late" and was therefore untimely under 8 C.F.R. § 1003.2(c)(2),2 and (2) that, in the circumstances presented, the filing deadline could not be tolled on account of the asserted incompetence of Ali's original counsel because Ali "made no effort after 1996 to learn of the status of his case" and therefore "fail[ed] to establish [that] he exercised diligence in pursuing his rights."
We review the denial of motions to reopen immigration proceedings for abuse of discretion, mindful that motions to reopen "are disfavored for the same reasons as are petitions for rehearing and motions for a new trial on the basis of newly discovered evidence." INS v. Doherty, 502 U.S. 314, 322-23, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Morgan v. Gonzales, 2006 WL 1030228, at *4 (2d Cir. Apr.20, 2006) ( ). A motion to reopen ordinarily must be filed within ninety days of the entry of the final decision in the underlying proceeding. See 8 C.F.R. § 1003.2(c)(2). This provision may be subject to equitable tolling provided that the petitioner has "pass[ed] with reasonable diligence through the period [he] seeks to have tolled." Iavorski, 232 F.3d at 134 (quoting Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir.1996)). While ineffective assistance of counsel may, under certain circumstances, provide a sufficient basis for equitable tolling, "an alien must demonstrate not only that the alien's constitutional right to due process has been violated by the conduct of counsel, but that the alien has exercised due diligence in pursuing the case during the period the alien seeks to toll." Id. at 135; see also Cekic v. INS, 435 F.3d 167, 170 (2d Cir.2006) ( ).
Upon our review of the record and of the August 24, 2004 order issued by the BIA, we hold that the BIA did not abuse its discretion in determining either that (1) petitioner's motion to reopen immigration proceedings was untimely, or that (2) petitioner failed to exercise "reasonable due diligence during the time period sought to be tolled," Cekic, 435 F.3d at 170. Instead, the BIA correctly concluded that Ali "made no effort after 1996 to learn the status of his case" despite having (a) been aware of his initial deportation order, (b) made several unsuccessful attempts to contact his attorney and (c) recognized his attorney's incompetence in his initial hearing before the Immigration Judge—a hearing which took place more than seventeen years prior to Ali's decision to file a motion to reopen.3
Ali further argues that, despite the untimeliness of his motion to reopen and any lack of due diligence on his part, the BIA erred by declining to reopen his removal proceedings sua sponte under 8 C.F.R. § 1003.2(a). See note 1, ante. While Ali concedes that "[u]nder its own authority and discretion, the Board `may at any time reopen or reconsider on its own motion any case in which it had rendered a decision,'" Pet'r's Br. at 35 n. 10 (emphasis added), he insists that "the Board should nonetheless have exercised such authority here as the Petitioner certainly presents compelling and exceptional circumstances upon which to act," id. at 35.
It is a matter of first impression in this Circuit whether we have jurisdiction to review the BIA's decision not to exercise its sua sponte authority to reopen removal proceedings. According to the relevant provision in the Code of Federal Regulations the BIA 8 C.F.R. § 1003.2(a).
Several other circuits have concluded that the BIA's failure to reopen removal proceedings sua sponte is a discretionary decision that cannot be reviewed by the Courts of Appeals. See Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249-50 (5th Cir.2004) (...
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