
    Alamgir CHOWDHURY, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
    No. 13-1106.
    United States Court of Appeals, Second Circuit.
    Oct. 28, 2014.
    Salim Sheikh, New York, NY, for Petitioner.
    Stuart F. Delery, Assistant Attorney General; Blair T. O’Connor, Assistant Director; Edward C. Durant, Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington D.C., for Respondent.
    PRESENT: JOSÉ A. CABRANES, GERARD E. LYNCH and RAYMOND J. LOHIER, JR., Circuit Judges.
   SUMMARY ORDER

Petitioner Alamgir Chowdhury, a native and citizen of Bangladesh, seeks review of the BIA’s February 28, 2013 decision denying his motion to reopen. In re Alamgir Chowdhury, No. [ AXXX XXX XXX ] (B.I.A. Feb. 28, 2013). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

It is undisputed that Chowdhury’s motion to reopen, filed one day beyond the 90-day period for reopening, was untimely. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). This period may be tolled if the alien can demonstrate ineffective assistance of counsel. Rashid v. Mukasey, 533 F.3d 127, 130 (2d Cir.2008). To benefit from equitable tolling, the alien must demonstrate, among other requirements, prejudice as a result of counsel’s incompetent performance. Id. at 130-31.

The BIA did not abuse its discretion in denying Chowdhury’s motion to reopen, because Chowdhury’s many arguments that counsel was incompetent failed to establish prejudice. First, Chowdhury argues that counsel was ineffective for failing to present sufficient evidence of his continuous physical presence or good moral character. The BIA correctly ruled that any failure of counsel to develop those factors did not prejudice Chowdhury, because the agency assumed those factors were met and denied his application solely for failure to establish hardship.

Second, Chowdhury argues that counsel failed to warn him about cross-examination, causing his testimony to appear “untrustworthy.” But again he cannot show prejudice, because the IJ did not find that Chowdhury lacked credibility.

Third, Chowdhury argues that his former counsel should have elicited testimony regarding the hardship his wife would suffer if she accompanied him to Bangladesh. As the BIA observed, Chowdhury and his wife testified “unequivocally” at his merits hearing that she would not return to Bangladesh, making any missing evidence of hardship in Bangladesh irrelevant.

Fourth, he faults his counsel for not further developing the record regarding his wife’s future hardship if she remained in the United States after his removal, particularly her health issues, her troubled former marriage, and her difficulties with household chores. But these issues were in fact developed below, through his wife’s testimony and affidavit. Chowdhury himself concedes that the IJ elicited testimony on these issues and he presents no new facts unavailable during the initial hearing.

Because the BIA did not abuse its discretion in denying Chowdhury’s motion to reopen as untimely, we need not reach the BIA’s alternative findings. As to Chowdhury’s new claim that the BIA should have exercised its authority to reopen sua sponte, this Court lacks jurisdiction to review the BIA’s exercise of its sua sponte authority absent alleged errors of law. Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir.2009).

For the foregoing reasons, the petition for review is DENIED.  