
    Moussa KONATE, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
    No. 12-64.
    United States Court of Appeals, Second Circuit.
    July 16, 2013.
    Jamie B. Naini, Memphis, TN, for Petitioner.
    Stuart F. Delery, Acting Assistant Attorney General; Richard Evans, Assistant Director; Brooke M. Maurer, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.
    Present: JOSÉ A. CABRANES, RAYMOND J. LOHIER, JR., and SUSAN L. CARNEY, Circuit Judges.
   SUMMARY ORDER

Petitioner Moussa Konate, a native and citizen of Mali, seeks review of a December 9, 2011, decision of the BIA denying his motion to reopen his removal proceedings, In re Moussa Konate, No. [ AXXX XXX XXX ] (B.I.A. Dec. 9, 2011). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

We review the BIA’s denial of a motion to reopen for abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (per curiam). Here, it is undisputed that Konate’s motion to reopen was filed one day past the ninety-day filing period for a motion to reopen. See 8 C.F.R. § 1003.2(c)(2). Therefore, the BIA did not abuse its discretion in denying Konate’s motion to reopen as untimely. Konate argues on appeal that the BIA should have considered whether he was entitled to equitable tolling of the filing deadline. However, this claim is unexhausted, as before the BIA Konate neither asserted that he was entitled to equitable tolling nor acknowledged that his motion was untimely. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007).

Additionally, to warrant equitable tolling, an alien must demonstrate ineffective assistance of counsel by showing that competent counsel would have acted otherwise, and that he was prejudiced by his counsel’s performance, none of which Konate has alleged. See Rashid v. Mukasey, 533 F.3d 127, 131 (2d Cir.2008). Even if Konate had alleged ineffective assistance of counsel, however, no prejudice resulted from his counsel’s actions because the BIA did not err in determining that Konate’s new evidence did not demonstrate that he had testified truthfully at his original merits hearing and thus established good moral character for the purposes of eligibility for cancellation of removal. See Rabiu v. INS, 41 F.3d at 879, 882 (2d Cir.1994); Jian Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 48 n. 2 (2d Cir.2005).

Finally, we lack jurisdiction to review the BIA’s discretionary decision not to reopen Konate’s proceedings sua sponte. See Ali, 448 F.3d at 518.

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2) and Second Circuit Local Rule 34.1(b).  