Ali v. Gonzales, Docket No. 04-4584-AG.

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtPer Curiam
Citation448 F.3d 515
PartiesAzmond ALI, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States,<SMALL><SUP>*</SUP></SMALL> Respondent.
Decision Date12 May 2006
Docket NumberDocket No. 04-4584-AG.

Page 515

448 F.3d 515
Azmond ALI, Petitioner,
v.
Alberto R. GONZALES, Attorney General of the United States,* Respondent.
Docket No. 04-4584-AG.
United States Court of Appeals, Second Circuit.
Argued: May 11, 2006.
Decided: May 12, 2006.

Page 516

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.

PER CURIAM.


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

Page 517

"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) (noting that motions to reopen are disfavored). 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) (noting that "no matter how egregious[] ineffective...

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634 practice notes
  • Zhang v. Holder, Docket No. 09-2628
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 12, 2010
    ...Board's decision becomes final to filePage 20a motion to reopen. See 8 U.S.C. § 1229a(c)(7)(A), (c) (7) (C) (i); see also All v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (per curiam).7 Petitioner's motion to reopen was untimely in this regard, as it was filed approximately five years afte......
  • Zetino v. Holder, No. 08-70390.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 18, 2010
    ...of Heckler do so on the basis of standardless regulations. See, e.g., Luis v. INS, 196 F.3d 36, 40 (1st Cir.1999); Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir.2003); Doh v. Gonzales, 193 Fed.Appx. 245, 246 (4th Cir.2006) (per cu......
  • Tamenut v. Mukasey, No. 05-4418.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • March 11, 2008
    ...proceedings on its own motion is committed to agency discretion by law. Luis v. INS, 196 F.3d 36, 40 (1st Cir.1999); Alt v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir.2003); Doh v. Gonzales, 193 Fed.Appx. 245, 246 (4th Cir. 2006) (per ......
  • Gor v. Holder, No. 08-3859.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 4, 2010
    ...and Harchenko, do so on the basis of standardless regulations. See, e.g., Luis v. INS, 196 F.3d 36, 40 (1st Cir.1999); Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir.2003); Doh v. Gonzales, 193 Fed.Appx. 245, 246 (4th Cir.2006) (per......
  • Request a trial to view additional results
632 cases
  • Zhang v. Holder, Docket No. 09-2628
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 12, 2010
    ...Board's decision becomes final to filePage 20a motion to reopen. See 8 U.S.C. § 1229a(c)(7)(A), (c) (7) (C) (i); see also All v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (per curiam).7 Petitioner's motion to reopen was untimely in this regard, as it was filed approximately five years afte......
  • Zetino v. Holder, No. 08-70390.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 18, 2010
    ...of Heckler do so on the basis of standardless regulations. See, e.g., Luis v. INS, 196 F.3d 36, 40 (1st Cir.1999); Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir.2003); Doh v. Gonzales, 193 Fed.Appx. 245, 246 (4th Cir.2006) (per cu......
  • Tamenut v. Mukasey, No. 05-4418.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • March 11, 2008
    ...proceedings on its own motion is committed to agency discretion by law. Luis v. INS, 196 F.3d 36, 40 (1st Cir.1999); Alt v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir.2003); Doh v. Gonzales, 193 Fed.Appx. 245, 246 (4th Cir. 2006) (per ......
  • Gor v. Holder, No. 08-3859.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 4, 2010
    ...and Harchenko, do so on the basis of standardless regulations. See, e.g., Luis v. INS, 196 F.3d 36, 40 (1st Cir.1999); Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir.2003); Doh v. Gonzales, 193 Fed.Appx. 245, 246 (4th Cir.2006) (per......
  • Request a trial to view additional results

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