Xing-Guo Liu v. Holder , 493 F. App'x 229 ( 2012 )

11-2792
Liu v. Holder
BIA
A072 485 204
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 29th day of August, two thousand twelve.
5
6 PRESENT:
7 ROBERT D. SACK,
8 GERARD E. LYNCH,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11
12
13 XING-GUO LIU, AKA XIAN KUO LIU,
14 AKA TAK CHAI LIN,
15 Petitioner,
16
17 v. 11-2792
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22
23
24 FOR PETITIONER: Cora J. Chang, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Carl H. McIntyre, Jr.,
28 Assistant Director; Linda Y. Cheng,
1 Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5 UPON DUE CONSIDERATION of this petition for review of a
6 decision of the Board of Immigration Appeals (“BIA”), it is
7 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
8 review is DENIED.
9 Xing-Guo Liu, a native and citizen of the People’s
10 Republic of China, seeks review of a June 28, 2011, decision
11 of the BIA denying his motion to reopen. In re Xing-Guo
12 Liu, No. A072 485 204 (B.I.A. June 28, 2011). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history of this case.
15 We review the BIA’s denial of a motion to reopen for
16 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
17 (2d Cir. 2006). There is no dispute that Liu’s motion to
18 reopen was untimely because it was filed more than seven
19 years after the agency’s final order of removal,
20 see 8 U.S.C. § 1229a(c)(7)(C)(I).
21 However, time limitations on motions to reopen may be
22 equitably tolled to accommodate claims of ineffective
23 assistance of counsel. See Rashid v. Mukasey, 533 F.3d 127,
24 130-32 (2d Cir. 2008); Jin Bo Zhao v. INS, 452 F.3d 154, 159
2
1 (2d Cir. 2006). An individual seeking equitable tolling is
2 required to demonstrate, inter alia, “due diligence” in
3 pursuing his claim during “both the period of time before
4 the ineffective assistance of counsel was or should have
5 been discovered and the period from that point until the
6 motion to reopen is filed.” Rashid, 533 F.3d at 130-32.
7 Moreover, to prevail on an ineffective assistance of counsel
8 claim, the alien must comply with certain procedures laid
9 out by the BIA in Matter of Lozada, 19 I&N Dec. 637 (BIA
10 1988). See Twum v. INS, 411 F.3d 54, 59 (2d Cir. 2005).
11 The BIA did not abuse its discretion in denying
12 reopening. Liu did not comply with the procedural
13 requirements enumerated in Matter of Lozada, as Liu failed
14 to submit affidavits setting forth his agreements with two
15 of his former attorneys, proof that he had notified his
16 former attorneys of the allegations of ineffective
17 assistance and allowed them an opportunity to respond, or
18 proof that he had filed disciplinary complaints alleging
19 violations of ethical or legal obligations against his
20 former attorneys. See Twum, 411 F.3d at 59 (citing Matter
21 of Lozada, 19 I&N Dec. at 639); see also Jian Yun Zheng v.
22 U.S. Dep’t of Justice, 409 F.3d 43, 46 (2d Cir. 2005) (“[A]n
3
1 alien who has failed to comply substantially with the Lozada
2 requirements in her motion to reopen before the BIA forfeits
3 her ineffective assistance of counsel claim in this
4 Court.”).
5 Additionally, even assuming compliance with Lozada as
6 required to obtain reopening, the BIA did not abuse its
7 discretion in denying the motion as untimely and declining
8 to equitably toll the filing deadline. As the BIA found,
9 Liu failed to demonstrate that he exercised due diligence in
10 pursuing reopening based on a claim of ineffective
11 assistance of counsel. See Rashid, 533 F.3d at 132. The
12 personal statement that Liu submitted in support of
13 reopening shows that Liu was aware, or should have been
14 aware, of the ineffective assistance at least seven years
15 prior to the filing of his motion given that the immigration
16 consulting service failed to prepare an accurate asylum
17 application, and his former attorneys failed to amend his
18 application and/or to indicate at any point during his
19 proceedings that he had been forcibly sterilized in China.
20 See id. Liu’s alleged ignorance of the law did not prevent
21 him from recognizing this defective conduct prior to the
22 filing of his motion. Id. at 132 n.3 (recognizing that
23 “even an alien who is unfamiliar with the technicalities of
4
1 immigration law can, under certain circumstances, be
2 expected to comprehend that the has received ineffective
3 assistance without being explicitly told so by an
4 attorney”). Accordingly, because Liu was aware, or should
5 have been aware, of the alleged ineffective assistance by
6 the time his proceedings concluded he did not exhibit the
7 type of diligence required for equitable tolling and the BIA
8 did not abuse its discretion by denying his motion as
9 untimely. See Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d
10 Cir. 2007) (finding petitioner who waited eight months to
11 file motion to reopen after discovering ineffective
12 assistance of former counsel did not demonstrate due
13 diligence); Iavorski v. INS, 232 F.3d 124, 134 (2d Cir.
14 2000) (finding a lack of due diligence when petitioner
15 failed to investigate status of appeal for approximately two
16 years).
17 For the foregoing reasons, the petition for review is
18 DENIED.
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
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