18-3025 Yahuitl v. Barr BIA A073 579 579 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 17th day of November, two thousand twenty. 5 6 PRESENT: 7 DENNY CHIN, 8 JOSEPH F. BIANCO, 9 WILLIAM J. NARDINI, 10 Circuit Judges. 11 _____________________________________ 12 13 PETRA YAHUITL, 14 Petitioner, 15 16 v. 18-3025 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Robert Cini, Esq., Howard 24 Rosengarten, P.C., New York, NY. 25 26 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 27 Assistant Attorney General; Erica 28 B. Miles , Senior Litigation 1 Counsel; Craig A. Newell, Jr., 2 Trial Attorney, Office of 3 Immigration Litigation, United 4 States Department of Justice, 5 Washington, DC. 6 UPON DUE CONSIDERATION of this petition for review of a 7 Board of Immigration Appeals (“BIA”) decision, it is hereby 8 ORDERED, ADJUDGED, AND DECREED that the petition for review 9 is DENIED. 10 Petitioner Petra Yahuitl, a native and citizen of Mexico, 11 seeks review of a September 18, 2018 decision of the BIA 12 denying her motion to reopen. In re Petra Yahuitl, No. A073 13 579 579 (B.I.A. Sept. 18, 2018). We assume the parties’ 14 familiarity with the underlying facts and procedural history. 15 We review the agency’s denial of a motion to reopen for 16 abuse of discretion. See Jian Hui Shao v. Mukasey, 546 F.3d 17 138, 168–69 (2d Cir. 2008). It is undisputed that Yahuitl’s 18 motion to reopen was number barred and untimely because it 19 was her second motion and she filed it twenty years after her 20 removal order and sixteen years after the BIA affirmed an 21 immigration judge’s denial of her first motion to reopen in 22 2002. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 23 8 C.F.R. § 1003.2(c)(2). Although the time and number 24 limitations may be excused upon a showing of ineffective 2 1 assistance of counsel, Rashid v. Mukasey, 533 F.3d 127, 130– 2 31 (2d Cir. 2008), to warrant tolling, Yahuitl had to 3 demonstrate that she “exercised due diligence in pursuing the 4 case during the period [she] seeks to toll,” Iavorski v. U.S. 5 I.N.S., 232 F.3d 124, 135 ...
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