Kone v. Holder, (2nd Cir. 2009)
Linked as:
Text
08-1161-ag (L); 08-3372-ag (Con)
Kone v. Holder
BIA
Hom, IJ
A73 537 736
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
"(SUMMARY ORDER)." A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 31 st day of March, two thousand nine.
PRESENT:
HON. JOSÉ A. CABRANES,
HON. RICHARD C. WESLEY,
HON. DEBRA ANN LIVINGSTON,
Circuit Judges.
ADAMA KONE,
Petitioner,
08-1161-ag(L);
v. 08-3372-ag(Con)
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondents.
FOR PETITIONER: Jeffrey M. Okun, New York, New York.
FOR RESPONDENTS: Gregory G. Katsas, Assistant
Attorney General, Barry J.
Pettinato, Assistant Director, Kristin A. Moresi, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.
UPON DUE CONSIDERATION of these consolidated petitions for review of a Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED, that the petitions for review are DENIED.
Petitioner Adama Kone, a native and citizen of the Ivory Coast, seeks review of: (1) the February 15, 2008 order of the BIA, which denied his motion to reopen; and (2) the June 10, 2008 order of the BIA, denying his motion to reconsider. In re Adama Kone, No. A73 537 736 (B.I.A. Feb.
15, 2008); In re Adama Kone, No. A73 537 736 (B.I.A. June 10, 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 or reconsider for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). We find no abuse of discretion in this case.
A. Motion to Reopen The BIA properly denied Kone's November 2007 motion to reopen as time barred, where it was filed almost 10 years after the BIA's final order in his case. See 8 C.F.R.
§ 1003.2(c)(2). In some circumstances the time limitation may be equitably tolled to accommodate claims of ineffective assistance of counsel, provided that the movant has exercised "due diligence" in vindicating his or her rights.
See Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006). The BIA did not abuse its discretion in finding that Kone failed to establish that he exercised due diligence in pursuing his ineffective assistance of counsel claim where he began to pursue his claims against his former attorneys, at the earliest, six years after their representation ended.
Rashid v. Mukasey, 533 F.3d 127, 131 (2d Cir. 2008).
The time limitation does not apply to a motion to reopen proceedings to apply for asylum based on changed country conditions. See 8 C.F.R. § 1003.2(c)(3)(ii). The BIA did not abuse its discretion in concluding that the evidence Kone submitted did not demonstrate his prima facie eligibility for asylum. See Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005). Other than relying on the premise that civil strife exists in the Ivory Coast, he does not explain how he is similarly situated to the FPI party members that were attacked and why he would be personally targeted if he returned there. Id.; Melgar de Torres v.
Reno, 191 F.3d 307, 314 n.3 (2d Cir. 1999).
We are without jurisdiction to consider Kone's argument that we should remand his case for the BIA to consider his request that it exercise its sua sponte authority to reopen his removal proceedings. See Cyrus v. Keisler, 505 F.3d 197, 200-201 (2d Cir. 2007); See also Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006).
B. Motion to Reconsider The BIA also properly denied Kone's motion to reconsider. While a motion to reconsider must specify errors of fact or law in the BIA's decision, see 8 C.F.R.
§ 1003.2(b)(1), Kone simply reasserted arguments that he had previously raised before the BIA in his motion to reopen.
However, a motion to reconsider may not be used to reassert arguments that have already been rejected by the BIA. See Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006) (finding that the BIA does not abuse its discretion by denying a motion to reconsider where the motion merely repeats arguments that the BIA has previously rejected).
For the foregoing reasons, the consolidated petitions for review are DENIED. As we have completed our review, any stay of removal that the Court previously granted in these petitions is VACATED, and any pending motion for a stay of removal in these petitions is DISMISSED as moot. Any pending request for oral argument in these petitions is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
FOR THE COURT: Catherine O'Hagan Wolfe, Clerk By:
Sponsored links
