Abraham Sory SANO, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 489 F. App'x 491

SUMMARY ORDER Abraham Sory Sano, a native and citizen of Guinea, seeks review of an August 16, 2010 order of the BIA denying his motion to reopen' his removal proceedings. In re Abraham Sory Sano, No. [ AXXX XXX XXX ] (B.I.A. Aug. 16, 2010). 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. See Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir.2006); Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam).

The BIA’s denial of Sano’s motion to reopen as untimely was not an abuse of discretion. See Kaur, 413 F.3d at 233. An alien seeking to reopen proceedings may file one motion to reopen no later than 90 days after the date on which the final administrative decision was rendered. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). There is no dispute that Sano’s 2010 motion was untimely, as the agency’s final administrative decision was issued in 2008. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).

However, in some instances, an alien may seek to toll the time period for filing a motion to reopen by demonstrating ineffective assistance of counsel. See Rabiu v. INS, 41 F.3d 879, 882 (2d Cir.1994). To prevail on a claim of ineffective assistance, an applicant must demonstrate that “competent counsel would have acted otherwise,” Esposito v. INS, 987 F.2d 108, 111 (2d Cir.1993), and that he was prejudiced as a result of his counsel’s poor performance, see Rabiu, 41 F.3d at 882.

To establish prejudice, Sano “must make a prima facie showing that he would have been eligible for the relief [sought] and that he could have made a strong showing in support of his application.” See Rabiu, 41 F.3d at 882. Sano has not shown that he was prejudiced by his former attorneys’ failure to file a brief in his appeal to the BIA. See Matter of Lazada, 19 I. & N. Dec. 637, 640 (BIA 1988) (concluding that applicant failed to show that prejudice resulted from his prior counsel’s failure to file an appellate brief).

As the BIA properly noted, nowhere in the motion to reopen does Sano address, or even acknowledge, the IJ’s dispositive findings pretermitting his asylum application as untimely and that he was not credible. Accordingly, Sano failed to. demonstrate that the filing deadline for his motion to reopen based on ineffective assistance of counsel should be equitably tolled, and the BIA did not abuse its discretion in denying his motion to reopen as untimely. See Kaur, 413 F.3d at 233; Rabiu, 41 F.3d at 882-83. 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).