24-1475-ag (L) Azamov v. Bondi
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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 6th day of November, two thousand twenty-five.
PRESENT: RICHARD C. WESLEY, RAYMOND J. LOHIER, JR., SARAH A. L. MERRIAM, Circuit Judges. ------------------------------------------------------------------ FIRDAVS AZAMOV, NARGIZA RAUFOVA, R.D., A.D., R.D., I.D.,
Petitioners,
v. Nos. 24-1475-ag (L); 24-3058-ag (CON)
PAMELA BONDI, UNITED STATES ATTORNEY GENERAL,
Respondent. * ------------------------------------------------------------------
* The Clerk of Court is directed to amend the caption as set forth above. FOR PETITIONERS: ALEXEY V. TARASOV, Esq., Rosenberg, TX
FOR RESPONDENT: NEHAL H. KAMANI, Trial Attorney, Office of Immigration Litigation (Brett F. Kinney, Senior Litigation Counsel, Brett A. Shumate, Assistant Attorney General, Civil Division, on the brief), United States Department of Justice, Washington, DC
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED,
AND DECREED that the petitions for review are DENIED.
Petitioners Firdavs Azamov, Nargiza Raufova, and their minor children
(collectively, “Azamov”), natives and citizens of Uzbekistan, petition for review
of two Board of Immigration Appeals (“BIA”) decisions denying their motions to
reopen and reissue the BIA’s December 18, 2023 decision affirming the denial by
an immigration judge (“IJ”) of Azamov’s application for asylum, withholding of
removal, and protection under the Convention Against Torture. We assume the
parties’ familiarity with the underlying facts and the record of prior proceedings,
to which we refer only as necessary to explain our decision to deny the petitions
for review.
2 We review the BIA’s denial of a motion to reopen and reissue for abuse of
discretion. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168–69 (2d Cir. 2008); Ping
Chen v. U.S. Att’y Gen., 502 F.3d 73, 75 (2d Cir. 2007) (“A motion to reissue is
treated as a motion to reopen.”). But we review constitutional claims and
questions of law de novo. See Luna v. Holder, 637 F.3d 85, 102 (2d Cir. 2011).
I. First Motion to Reopen and Reissue
A noncitizen “may file one motion to reopen” “within 90 days of the date
of entry of a final administrative order of removal.” 8 U.S.C. §§ 1229a(c)(7)(A),
(C)(i). Azamov filed his first motion to reopen on March 28, 2024, more than 90
days after the BIA’s December 18, 2023 decision. Azamov justifies the otherwise
untimely filing by asserting that he and his attorney did not receive timely notice
of the BIA’s decision. But under these circumstances, where Azamov had
“notice of the proceedings and the hearings, no statute grants a right to relief for
failure to receive notice of the BIA's decision.” Ping Chen, 502 F.3d at 76. The
absence of actual notice—that is, the petitioner’s non-receipt of the decision—
does not affect the filing deadline for a motion to reopen where “the BIA has
performed its duty of serving the order.” Id.
3 Azamov does not dispute the BIA’s finding that the record reflects that the
agency served its decision electronically on Azamov’s attorney at 10:00 a.m. on
December 18, 2023. See 8 C.F.R. § 1003.3(g)(6)(ii). He nevertheless insists that the
BIA’s service was “defective,” pointing to what he characterizes as his attorney’s
“undisputed statements” that the decision was never received. Petitioners’ Br.
13. But evidence of non-receipt is merely circumstantial evidence of non-service,
and “the BIA may reasonably accord less weight to an affidavit of non-receipt
than to its own records establishing that the order was in fact [served].” Ping
Chen, 502 F.3d at 77.
Azamov also points to an alleged statement by a “BIA clerk” admitting
that the BIA “never issued a decision in writing.” Cert. Admin. R. 33. But
Azamov did not disclose this statement to the BIA until his second motion to
reopen; so the “BIA can hardly be faulted for failing to address” it in response to
Azamov’s first motion. Ping Chen, 502 F.3d at 77; see also Foster v. INS, 376 F.3d
75, 78 (2d Cir. 2004) (noting that we generally do not review issues unexhausted
before the BIA). Even if considered in the context of Azamov’s first motion, the
alleged statement—communicated in an unsworn letter from Azamov’s former
attorney—does not demonstrate that “‘any reasonable adjudicator would be
4 compelled to conclude’ that the BIA failed to correctly [serve] its decision.” Ping
Chen, 502 F.3d at 77 (quoting 8 U.S.C. § 1252(b)(4)(B)). 1
Therefore, the time to move to reopen began running from December 18,
2023, and Azamov’s first motion was untimely. To toll the deadline, Azamov
had the burden of showing that he and his former counsel exercised reasonable
due diligence in filing the motion. See Rashid v. Mukasey, 533 F.3d 127, 131–32 (2d
Cir. 2008). But Azamov has abandoned this issue by failing to raise it on appeal.
See Debique v. Garland, 58 F.4th 676, 684 (2d Cir. 2023). We therefore conclude
that the BIA did not abuse its discretion in denying Azamov’s first motion to
reopen.
II. Second Motion to Reopen and Reissue
On August 27, 2024, Azamov filed a second motion to reopen, this time
arguing that the attorney who represented him in his removal proceedings
before the IJ and through the first motion to reopen had been ineffective. This
second motion to reopen, filed more than eight months after the BIA’s December
2023 decision, was both time-barred and number-barred. See 8 U.S.C.
1 Whether a second, mailed copy of the December 2023 decision sent to Azamov was misaddressed is immaterial given the BIA’s finding that service was provided electronically to Azamov’s attorney. See 8 C.F.R. § 1292.5(a); Stajic v. INS, 961 F.2d 403, 405 (2d Cir. 1992). 5 §§ 1229a(c)(7)(A), (C)(i). The doctrine of equitable tolling provides an exception
to both bars, however, if a movant demonstrates ineffective assistance of counsel.
See Jin Bo Zhao v.
Free access — add to your briefcase to read the full text and ask questions with AI
24-1475-ag (L) Azamov v. Bondi
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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 6th day of November, two thousand twenty-five.
PRESENT: RICHARD C. WESLEY, RAYMOND J. LOHIER, JR., SARAH A. L. MERRIAM, Circuit Judges. ------------------------------------------------------------------ FIRDAVS AZAMOV, NARGIZA RAUFOVA, R.D., A.D., R.D., I.D.,
Petitioners,
v. Nos. 24-1475-ag (L); 24-3058-ag (CON)
PAMELA BONDI, UNITED STATES ATTORNEY GENERAL,
Respondent. * ------------------------------------------------------------------
* The Clerk of Court is directed to amend the caption as set forth above. FOR PETITIONERS: ALEXEY V. TARASOV, Esq., Rosenberg, TX
FOR RESPONDENT: NEHAL H. KAMANI, Trial Attorney, Office of Immigration Litigation (Brett F. Kinney, Senior Litigation Counsel, Brett A. Shumate, Assistant Attorney General, Civil Division, on the brief), United States Department of Justice, Washington, DC
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED,
AND DECREED that the petitions for review are DENIED.
Petitioners Firdavs Azamov, Nargiza Raufova, and their minor children
(collectively, “Azamov”), natives and citizens of Uzbekistan, petition for review
of two Board of Immigration Appeals (“BIA”) decisions denying their motions to
reopen and reissue the BIA’s December 18, 2023 decision affirming the denial by
an immigration judge (“IJ”) of Azamov’s application for asylum, withholding of
removal, and protection under the Convention Against Torture. We assume the
parties’ familiarity with the underlying facts and the record of prior proceedings,
to which we refer only as necessary to explain our decision to deny the petitions
for review.
2 We review the BIA’s denial of a motion to reopen and reissue for abuse of
discretion. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168–69 (2d Cir. 2008); Ping
Chen v. U.S. Att’y Gen., 502 F.3d 73, 75 (2d Cir. 2007) (“A motion to reissue is
treated as a motion to reopen.”). But we review constitutional claims and
questions of law de novo. See Luna v. Holder, 637 F.3d 85, 102 (2d Cir. 2011).
I. First Motion to Reopen and Reissue
A noncitizen “may file one motion to reopen” “within 90 days of the date
of entry of a final administrative order of removal.” 8 U.S.C. §§ 1229a(c)(7)(A),
(C)(i). Azamov filed his first motion to reopen on March 28, 2024, more than 90
days after the BIA’s December 18, 2023 decision. Azamov justifies the otherwise
untimely filing by asserting that he and his attorney did not receive timely notice
of the BIA’s decision. But under these circumstances, where Azamov had
“notice of the proceedings and the hearings, no statute grants a right to relief for
failure to receive notice of the BIA's decision.” Ping Chen, 502 F.3d at 76. The
absence of actual notice—that is, the petitioner’s non-receipt of the decision—
does not affect the filing deadline for a motion to reopen where “the BIA has
performed its duty of serving the order.” Id.
3 Azamov does not dispute the BIA’s finding that the record reflects that the
agency served its decision electronically on Azamov’s attorney at 10:00 a.m. on
December 18, 2023. See 8 C.F.R. § 1003.3(g)(6)(ii). He nevertheless insists that the
BIA’s service was “defective,” pointing to what he characterizes as his attorney’s
“undisputed statements” that the decision was never received. Petitioners’ Br.
13. But evidence of non-receipt is merely circumstantial evidence of non-service,
and “the BIA may reasonably accord less weight to an affidavit of non-receipt
than to its own records establishing that the order was in fact [served].” Ping
Chen, 502 F.3d at 77.
Azamov also points to an alleged statement by a “BIA clerk” admitting
that the BIA “never issued a decision in writing.” Cert. Admin. R. 33. But
Azamov did not disclose this statement to the BIA until his second motion to
reopen; so the “BIA can hardly be faulted for failing to address” it in response to
Azamov’s first motion. Ping Chen, 502 F.3d at 77; see also Foster v. INS, 376 F.3d
75, 78 (2d Cir. 2004) (noting that we generally do not review issues unexhausted
before the BIA). Even if considered in the context of Azamov’s first motion, the
alleged statement—communicated in an unsworn letter from Azamov’s former
attorney—does not demonstrate that “‘any reasonable adjudicator would be
4 compelled to conclude’ that the BIA failed to correctly [serve] its decision.” Ping
Chen, 502 F.3d at 77 (quoting 8 U.S.C. § 1252(b)(4)(B)). 1
Therefore, the time to move to reopen began running from December 18,
2023, and Azamov’s first motion was untimely. To toll the deadline, Azamov
had the burden of showing that he and his former counsel exercised reasonable
due diligence in filing the motion. See Rashid v. Mukasey, 533 F.3d 127, 131–32 (2d
Cir. 2008). But Azamov has abandoned this issue by failing to raise it on appeal.
See Debique v. Garland, 58 F.4th 676, 684 (2d Cir. 2023). We therefore conclude
that the BIA did not abuse its discretion in denying Azamov’s first motion to
reopen.
II. Second Motion to Reopen and Reissue
On August 27, 2024, Azamov filed a second motion to reopen, this time
arguing that the attorney who represented him in his removal proceedings
before the IJ and through the first motion to reopen had been ineffective. This
second motion to reopen, filed more than eight months after the BIA’s December
2023 decision, was both time-barred and number-barred. See 8 U.S.C.
1 Whether a second, mailed copy of the December 2023 decision sent to Azamov was misaddressed is immaterial given the BIA’s finding that service was provided electronically to Azamov’s attorney. See 8 C.F.R. § 1292.5(a); Stajic v. INS, 961 F.2d 403, 405 (2d Cir. 1992). 5 §§ 1229a(c)(7)(A), (C)(i). The doctrine of equitable tolling provides an exception
to both bars, however, if a movant demonstrates ineffective assistance of counsel.
See Jin Bo Zhao v. INS, 452 F.3d 154, 160 (2d Cir. 2006). To establish ineffective
assistance, Azamov must demonstrate that “he was prejudiced as a result of [his
counsel’s] deficient performance.” Paucar v. Garland, 84 F.4th 71, 80 (2d Cir.
2023).
The BIA concluded that Azamov failed to show prejudice because he did
not demonstrate that there was “a reasonable probability” that this Court would
have granted his petition for review of the December 2023 decision if it had been
timely filed. Cert. Admin. R. 5. Relying on Penson v. Ohio, 488 U.S. 75 (1988), and
Douglas v. California, 372 U.S. 353 (1963), Azamov responds that the lost
opportunity for judicial review itself suffices to establish prejudice.
But Azamov’s reliance on Penson and Douglas is unavailing because both
cases involved the complete absence of counsel, not the ineffective assistance of
counsel. See Penson, 488 U.S. at 88; Douglas, 372 U.S. at 354–55. 2 Accordingly, we
2The Supreme Court recently held that 8 U.S.C. § 1252(b)(1)’s 30-day filing deadline is non-jurisdictional. See Riley v. Bondi, 145 S. Ct. 2190, 2203 (2025), abrogating Bhaktibhai- Patel v. Garland, 32 F.4th 180, 187–89 (2d Cir. 2022). So even if we used Azamov’s preferred legal standard, we would conclude that his counsel’s performance has not “entirely deprived [him] of the right to appellate review.” Petitioners’ Br. 10. 6 conclude that the BIA did not abuse its discretion in denying Azamov’s second
motion to reopen.
We have considered Azamov’s remaining arguments and conclude that
they are without merit. For the foregoing reasons, the petitions for review are
DENIED. All pending motions and applications are DENIED and stays
VACATED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court