Immigration — motions to reconsider

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United States Court of Appeals For the Seventh Circuit

Civil

Immigration — motions to reconsider

A motion to reconsider was properly denied as untimely, where the alien failed to show due diligence.

“In order to succeed on a claim for equitable tolling, a petitioner must demonstrate due diligence. Johnson v. Gonzales, 478 F.3d 795, 799 (7th Cir. 2007); Patel v. Gonzales, 442 F.3d 1011, 1016 (7th Cir. 2006). In assessing due diligence in the context of ineffective assistance of counsel, the claimant must demonstrate that he could not reasonably have been expected to file earlier. Johnson, 478 F.3d at 799; Pervaiz v. Gonzales, 405 F.3d 488, 490 (7th Cir. 2005). See also Patel, 442 F.3d at 1016 (equitable tolling requires a court to consider whether a reasonable person in the claimant’s position would have been aware of the possibility that he had suffered an injury). In support of his claim of due diligence, El-Gazawy attached an affidavit to his Motion to Reopen (‘Affidavit’). In the April 5, 2011 Affidavit, El-Gazawy simply asserted that (1) he hired Abuzir; (2) that Abuzir failed to meet the IJ’s September 22, 2009 deadline for filing his application for cancellation of removal and supporting documentation; (3) that the IJ deemed his application abandoned and ordered him removed on October 7, 2009; (4) that he ‘subsequently’ hired new lawyers to help him remedy the ineffectiveness of his prior counsel; and (5) that he had given notice to his prior attorney and filed a claim against the attorney with the ARDC. El-Gazawy did not state when he discovered that his lawyer was not performing competently or what steps he took in the interim to protect his interests. He offers no evidence regarding what happened between the IJ’s order of removal on October 7, 2009, and the April 6, 2011 filing of the Motion to Reopen. In light of his failure to offer any support for his claim that he acted diligently to preserve his rights during that time, we cannot say that the BIA abused its discretion in finding that El-Gazawy failed to meet the standard for due diligence.”

Petition Denied.

11-3582 El-Gazawy v. Holder

On Petition for Review of a Final Order of the Board of Immigration Appeals, Rovner, J.