Adem MAMUDOSKI-AJVAZ, Naksie Mamudoska, Petitioners, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 517 F. App'x 24

SUMMARY ORDER Petitioners Adem Mamudoski-Ajvaz and Naksie Mamudoska, natives of the former Yugoslavia and citizens of Macedonia, seek review of a July 14, 2011, decision of the BIA denying their second motion to reopen. In re Adem Mamudoski-Ajvaz, Naksie Mamudoska, Nos. [ AXXX XXX XXX ]/217 (B.I.A. July 14, 2011). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006).

Aliens 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)(A), (C); 8 C.F.R. § 1003.2(c)(2). Indisputably, petitioners’ 2010 motion was untimely and number-barred because it was their second motion to reopen and it was filed more than 13 years after the final administrative order in their deportation proceedings. See 8 U.S.C. § 1229a(c)(7)(A), (C); see also 8 C.F.R. § 1003.2(c)(2).

Moreover, the BIA did not abuse its discretion in declining to equitably toll the time limitation for filing their motion to reopen based on their claim of ineffective assistance of counsel. In order to warrant equitable tolling, even assuming that prior counsel was ineffective, an alien is required to demonstrate due diligence in pursuing the claim 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.” Rashid v. Mukasey, 533 F.3d 127, 131 (2d Cir.2008); see also Cekic v.

INS, 435 F.3d 167, 170 (2d Cir.2006). As the BIA concluded, petitioners failed to dem onstrate due diligence. They did not allege any action to discover or pursue ineffective assistance between the denial of relief from deportation in 1996 and their motion to reopen based on that claim in 2010. See Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir.2007). This conclusion is dispositive of the petition for review insofar as it relates to petitioners’ ineffective assistance of counsel claim. We decline to consider the parties’ alternative arguments.

Remand for the BIA to explicitly consider the request for sua sponte reopening based on good moral character and ties to the United States would be futile. See Alam v. Gonzales, 438 F.3d 184, 187-88 (2d Cir.2006). The BIA previously denied as untimely petitioners’ motion to reopen based on these factors, and, in the instant motion, they did not assert that they were eligible for any new forms of relief. See Matter of G-D-, 22 I. & N.

Dec. 1132, 1133-34 (BIA 1999) (“[W]e invoke our sua sponte authority sparingly, treating it not as a general remedy for any hardships created by enforcement of the time and number limits in the motions regulations, but as an extraordinary remedy reserved for truly exceptional situations.”). 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).