Mohammad SIDDIQUI, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 522 F. App'x 40

SUMMARY ORDER Petitioner Mohammad Siddiqui, a native and citizen of Pakistan, seeks review of an April 27, 2011, decision of the BIA denying his motion to reopen his removal proceedings. In re Mohammad Siddiqui, No. [ AXXX XXX XXX ] (B.I.A. Apr. 27, 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).

An alien seeking to reopen proceedings is required to file a motion to reopen no later than 90 days after the date on which the final administrative decision was rendered. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). There is no dispute that Siddiqui’s motion to reopen, filed more than seven years after his final order of removal, was untimely. Siddiqui contends, however, that the time limitation should be tolled because his former counsel failed to pursue his petition for review in this Court in 2002, which constituted ineffective assistance.

The time limitation for a motion to reopen may be tolled due to ineffective assistance of counsel, provided that the movant: (1) alleges facts sufficient to show that competent counsel would have acted otherwise and that he was prejudiced by the ineffective assistance of counsel; and (2) establishes that he exercised due diligence in pursuing his claim. See Rashid v. Mukasey, 533 F.3d 127, 131 (2d Cir.2008).

The BIA did not abuse its discretion in declining equitably to toll the limitations period because Siddiqui failed to demonstrate that he was prejudiced by his former counsel’s actions, as the agency did not err in determining that he was an arriving alien and thus ineligible to apply for adjustment of status before the BIA or the immigration judge (“IJ”). See Rabiu v. INS, 41 F.3d 879, 882-83 (2d Cir.1994); see also Brito v.

Mukasey, 521 F.3d 160, 166 (2d Cir.2008) (noting that both before and after 2006 regulatory changes, IJs lacked jurisdiction over adjustment of status applications for arriving aliens placed in removal proceedings). Furthermore, the Department of Homeland Security (“DHS”) currently has jurisdiction to adjudicate adjustment of status applications for arriving aliens with unexecuted final orders of removal and to grant stays of removal while such applications are pending. See Matter of Yauri, 25 I. & N. Dec. 103, 107-09 (B.I.A.2009). 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).