No Per Se Prejudice from Lost Appeal; Electronic Service Starts Reopening Clock — Azamov v. Bondi (2d Cir. 2025)

Court: United States Court of Appeals for the Second Circuit (Summary Order — Non-Precedential)

Date: November 6, 2025

Docket Nos.: 24-1475-ag (Lead); 24-3058-ag (Consolidated)

Panel: Circuit Judges Wesley, Lohier, and Merriam

Introduction

This immigration case arises from two motions to reopen and reissue filed by Uzbek nationals Firdavs Azamov and his family after the Board of Immigration Appeals (BIA) affirmed an Immigration Judge’s denial of asylum, withholding of removal, and Convention Against Torture protection on December 18, 2023. The core disputes concern (1) whether the untimeliness of the first motion to reopen could be excused due to alleged non-receipt of the BIA’s decision, and (2) whether equitable tolling of time and number bars is warranted based on ineffective assistance of counsel with respect to a lost opportunity to timely petition for review in the court of appeals.

In denying both petitions for review, the Second Circuit reaffirms two practical and often dispositive propositions in immigration litigation:

Proper electronic service on counsel by the BIA triggers the 90-day reopening deadline, regardless of counsel’s actual receipt of the decision (Ping Chen remains controlling); and
In the ineffective-assistance context, the mere loss of an opportunity for judicial review does not itself establish prejudice; a movant must show a “reasonable probability” of success had the review been timely pursued (following Paucar and distinguishing Penson/Douglas).

Although issued as a non-precedential summary order, the decision offers clear guidance for practitioners on service, timeliness, equitable tolling, and prejudice, and it flags a significant Supreme Court development: Riley v. Bondi (2025), which holds the 30-day petition-for-review deadline in 8 U.S.C. § 1252(b)(1) is non-jurisdictional.

Summary of the Opinion

Standard of review: Denials of motions to reopen/reissue are reviewed for abuse of discretion; constitutional claims and questions of law de novo.
First motion to reopen/reissue (filed March 28, 2024):
- Untimely. The 90-day deadline ran from December 18, 2023, when the BIA electronically served counsel per 8 C.F.R. § 1003.3(g)(6)(ii).
- No relief for non-receipt. Actual non-receipt by counsel does not excuse untimeliness where the BIA’s service records show proper service (Ping Chen).
- Unexhausted factual assertion. A later-asserted statement attributed to a BIA clerk was not raised in the first motion; the BIA was not required to consider it there (Foster; Ping Chen).
- Due diligence abandoned. Any argument for tolling based on diligence was forfeited on appeal (Debique).
Second motion to reopen (filed August 27, 2024):
- Time-barred and number-barred. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i).
- No equitable tolling. Ineffective assistance must show prejudice — a reasonable probability that the court would have granted a timely petition for review (Paucar). The record did not establish this.
- No per se prejudice. The panel rejected reliance on Penson and Douglas (complete absence of counsel cases) to presume prejudice from the lost appeal opportunity.
- Note on Riley v. Bondi. Even in light of Riley’s holding that § 1252(b)(1)’s 30-day deadline is non-jurisdictional (abrogating Bhaktibhai-Patel), counsel’s conduct did not entirely deprive petitioner of appellate review; thus, no basis for presumed prejudice.
Disposition: Petitions for review denied; all pending motions denied; stays vacated.

Analysis

Precedents and Authorities Cited

Jian Hui Shao v. Mukasey, 546 F.3d 138, 168–69 (2d Cir. 2008): Reiterates abuse-of-discretion review for denials of motions to reopen.
Ping Chen v. U.S. Attorney General, 502 F.3d 73, 75–77 (2d Cir. 2007):
- A motion to reissue is treated as a motion to reopen.
- Where the BIA performs its duty of service, lack of actual notice (non-receipt) by counsel does not toll the reopening deadline.
- The BIA may credit its own service records over affidavits of non-receipt.
Luna v. Holder, 637 F.3d 85, 102 (2d Cir. 2011): Constitutional questions and questions of law reviewed de novo.
8 U.S.C. § 1229a(c)(7)(A), (C)(i): One motion to reopen; 90-day filing deadline from the final administrative order.
8 C.F.R. § 1003.3(g)(6)(ii): Electronic service of BIA decisions on counsel.
8 C.F.R. § 1292.5(a) and Stajic v. INS, 961 F.2d 403, 405 (2d Cir. 1992): Service on counsel constitutes service on the party; a misaddressed paper copy is immaterial when electronic service on counsel is proper.
Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004): Exhaustion — issues not presented to the BIA generally are not reviewed.
Rashid v. Mukasey, 533 F.3d 127, 131–32 (2d Cir. 2008): Equitable tolling requires reasonable diligence; here, the argument was abandoned on appeal (see also Debique).
Debique v. Garland, 58 F.4th 676, 684 (2d Cir. 2023): Arguments not raised on appeal are abandoned.
Jin Bo Zhao v. INS, 452 F.3d 154, 160 (2d Cir. 2006): Equitable tolling can excuse time/number bars upon a showing of ineffective assistance of counsel.
Paucar v. Garland, 84 F.4th 71, 80 (2d Cir. 2023): To prove ineffective assistance in immigration, a movant must show prejudice — a “reasonable probability” of a different outcome.
Penson v. Ohio, 488 U.S. 75 (1988), and Douglas v. California, 372 U.S. 353 (1963): Presume prejudice where a criminal appellant is completely denied counsel on direct appeal; distinguished here because Azamov’s claim is ineffective assistance, not absence of counsel.
Riley v. Bondi, 145 S. Ct. 2190, 2203 (2025): The 30-day deadline to file a petition for review in § 1252(b)(1) is non-jurisdictional; abrogates Second Circuit precedent (Bhaktibhai-Patel) treating it as jurisdictional. The panel notes Riley but explains it does not establish per se prejudice under ineffective-assistance doctrine.

Legal Reasoning

1) First Motion to Reopen/Reissue: Timeliness and Service

The panel’s analysis turns on the principle that the reopening clock runs from the date the BIA properly serves its decision. The record reflected electronic service on counsel at 10:00 a.m. on December 18, 2023, pursuant to 8 C.F.R. § 1003.3(g)(6)(ii). Under Ping Chen, once the BIA has effected service, the movant’s non-receipt is immaterial to the statutory deadline. The court further endorses the BIA’s prerogative to credit its service records over an affidavit (or, here, an unsworn letter) asserting non-receipt.

Attempts to undermine service by later referencing a supposed “BIA clerk” who said no written decision issued were unavailing for two reasons: (a) the assertion was not presented in the first motion, so the BIA cannot be faulted for not addressing it; and (b) even if considered, such unsworn, hearsay-like assertions do not compel a finding of defective service given the BIA’s contemporaneous service records. The panel’s approach tracks longstanding exhaustion rules (Foster) and evidentiary deference to agency records (Ping Chen).

Finally, although equitable tolling could theoretically excuse lateness with a showing of reasonable diligence (Rashid), petitioners forfeited that argument by not advancing it on appeal (Debique). The result: the first motion remained untimely.

2) Second Motion to Reopen: Ineffective Assistance and Prejudice

The second motion, filed more than eight months after the BIA’s decision and following an earlier motion, was both time-barred and number-barred. The petitioners sought equitable tolling by alleging ineffective assistance of prior counsel. Under Jin Bo Zhao, ineffective assistance can toll these limits, but Paucar requires a showing of prejudice: a reasonable probability that, but for counsel’s deficiencies, the result would have been different.

Here, the relevant “result” was the outcome of a timely petition for review of the BIA’s December 2023 decision. The BIA concluded, and the panel agreed, that petitioners had not shown a reasonable probability that the Second Circuit would have granted such a petition. Petitioners’ reliance on Penson and Douglas to presume prejudice failed because those cases address the complete denial of counsel on direct appeal — not claims of ineffective assistance in the immigration context. The panel thus declined to adopt a per se prejudice rule based solely on the loss of an appellate opportunity due to counsel’s performance.

The panel also addressed the newly-minted Supreme Court ruling in Riley v. Bondi, which recharacterizes § 1252(b)(1)’s deadline as a non-jurisdictional claim-processing rule. Even assuming that characterization could support some theories of prejudice where a lawyer’s error blocks any avenue of review, the panel underscored that this was not such a case: counsel’s performance had not “entirely deprived” petitioners of appellate review, precluding any presumption of prejudice even under petitioners’ preferred framing.

Impact and Practical Implications

Service and deadlines: The decision reinforces that electronic service on counsel is legally sufficient to start the 90-day reopening clock. Practitioners must vigilantly monitor EOIR/BIA electronic dockets and ensure that email and eRegistry information is current. Affidavits of non-receipt will rarely overcome the BIA’s service records.
Reissue requests are reopenings: The court reiterates that a motion to reissue is treated as a motion to reopen, with all attendant time/number constraints (Ping Chen). Labeling a filing as “reissue” does not avoid statutory limits.
Ineffective assistance and prejudice: The panel’s embrace of Paucar confirms that, to equitably toll deadlines based on ineffective assistance, a movant must go beyond proving counsel’s deficiency — they must also show a reasonable probability that the lost petition for review would have succeeded. A bare assertion that counsel’s lapse cost the client an appeal is insufficient where some appellate review remained possible or where the underlying claim’s merits are not demonstrably strong.
Riley v. Bondi’s ripple effects: While Riley is a significant Supreme Court development making § 1252(b)(1)’s deadline non-jurisdictional, this case shows it does not relax the prejudice showing for ineffective assistance in reopening. The government may still enforce the deadline as a claim-processing rule, and petitioners must still establish that timeliness (had counsel complied) likely would have mattered to the outcome.
Exhaustion and record-building: New factual assertions (e.g., conversations with clerks) introduced after the fact and unsupported by sworn evidence are disfavored. Preserve issues before the BIA, submit competent evidence, and anticipate that the agency’s service logs will be treated as reliable.
Abandonment on appeal: The court’s reliance on Debique is a reminder: arguments not raised in the petition for review are forfeited. If equitable tolling is sought, diligence must be argued and supported from the outset and preserved.

Complex Concepts Simplified

Motion to reopen vs. motion to reissue: A motion to reopen asks the BIA to revisit a case after a final decision, typically to consider new evidence or changed circumstances; a motion to reissue seeks a new issuance of the BIA decision to reset appeal deadlines. The Second Circuit treats a motion to reissue as a motion to reopen, so it is subject to the same time and number limits.
Electronic service on counsel: The BIA commonly serves decisions electronically through its system. By regulation, service on the attorney is service on the client. Once the BIA’s records show service, the 90-day reopening clock starts, even if the attorney says they didn’t actually see the notice.
Equitable tolling: A doctrine that lets courts excuse late filings when extraordinary circumstances (like serious attorney misconduct) prevent timely action and the party acted with reasonable diligence. In immigration, equitable tolling can overcome both time and numerical limits on motions to reopen.
Ineffective assistance of counsel (IAC): To obtain relief based on IAC, a noncitizen must show counsel performed deficiently and that this deficiency prejudiced the case. Prejudice usually means there’s a reasonable probability the outcome would have been different absent the errors.
Prejudice “reasonable probability” standard: Not “more likely than not,” but a substantial, not speculative, chance of a different result. In this context, petitioners had to show that if counsel had timely filed a petition for review, the Second Circuit likely would have granted it.
Jurisdictional vs. claim-processing rules: A jurisdictional deadline cannot be waived or excused; courts lack power to hear late cases. A claim-processing rule, by contrast, can be forfeited or waived if not properly invoked by the opposing party and may be subject to equitable doctrines. Riley v. Bondi places the § 1252(b)(1) 30-day deadline in the latter category.
Exhaustion: Parties generally must present issues and supporting evidence to the BIA before seeking judicial review. Courts seldom consider new issues or evidence raised for the first time in a petition for review.

Practice Pointers

Verify and maintain current contact information in EOIR/BIA electronic systems; set redundant docketing alerts for anticipated decision dates.
When alleging non-receipt, promptly obtain and submit EOIR/BIA service logs; supplement with sworn declarations and corroborating documentation. Expect the agency’s service records to carry substantial weight.
If seeking equitable tolling:
- Document diligent efforts from the decision date forward (calls, inquiries, filings, FOIA requests).
- For IAC claims, go beyond deficiency — build a merits showing that demonstrates a reasonable probability a petition for review would have succeeded.
Preserve all issues before the BIA; do not reserve key factual assertions (e.g., staff statements) for later filings; use sworn statements where possible.
On appeal, brief diligence expressly. Failure to argue it may forfeit equitable tolling.
Post-Riley, be alert to the claim-processing nature of § 1252(b)(1): the government can forfeit timeliness objections, but petitioners should not assume relief — courts may still enforce the deadline when invoked, and IAC prejudice still must be shown.

Conclusion

Azamov v. Bondi underscores enduring, practical rules in immigration litigation: the BIA’s electronic service on counsel starts the 90-day reopening clock regardless of actual receipt, and equitable tolling for ineffective assistance demands a concrete showing of prejudice — a reasonable probability of success — not merely the loss of an appellate opportunity. The panel distinguishes criminal-appeal precedents presuming prejudice where counsel is altogether absent, and it situates its reasoning within the evolving landscape shaped by Riley v. Bondi, which reclassifies the petition-for-review deadline as non-jurisdictional. While this summary order lacks precedential effect, its synthesis of service, timeliness, exhaustion, and prejudice standards provides persuasive guidance for future motions practice in the Second Circuit.