Mao Zhu Lin v. Holder , 361 F. App'x 279 ( 2010 )

08-2609-ag
Lin v. Holder
BIA
A078 383 296
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 22 nd day of January, two thousand ten.
5
6 PRESENT:
7 RALPH K. WINTER,
8 PIERRE N. LEVAL,
9 JOSÉ A. CABRANES,
10 Circuit Judges.
11 __________________________________
12 MAO ZHU LIN,
13 Petitioner,
14
15 v. 08-2609-ag
16 NAC
17 ERIC H. HOLDER, JR., 1
18 U.S.ATTORNEY GENERAL,
19 Respondent.
20 __________________________________
21 FOR PETITIONER: Gary J. Yerman, Esq., New York, New
22 York.
23
24 FOR RESPONDENT: Gregory G. Katsas, Assistant
25 Attorney General, Civil Division;
26 Susan K. Houser, Senior Litigation
27 Counsel; Leah V. Durant, Attorney,
28 Office of Immigration Litigation,
29 U.S. Department of Justice,
30 Washington, D.C.
31
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr. is
automatically substituted for former Attorney General
Michael B. Mukasey as the respondent in this case.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Petitioner Mao Zhu Lin, a native and citizen of the
6 People’s Republic of China, seeks review of a May 13, 2008
7 order of the BIA denying his motion to reopen. In re Mao
8 Zhu Lin, No. A078 383 296 (B.I.A. May 13, 2008). We assume
9 the parties’ familiarity with the underlying facts and
10 procedural history in this case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Ke Zhen Zhao v. U.S. Dep’t of
13 Justice, 265 F.3d 83, 90 (2d Cir. 2001). A motion to reopen
14 must be filed no later than 90 days after the final
15 administrative decision is rendered in the proceedings that
16 the applicant seeks to reopen. 8 U.S.C. § 1229a(c)(7);
17 8 C.F.R. § 1003.2(c)(2). In this case, Lin did not file his
18 motion to reopen until more than three years after the
19 issuance of the BIA’s final administrative order, and there
20 is no dispute that his motion was untimely. However, when a
21 movant raises a claim of ineffective assistance of counsel,
22 the filing deadline may, under certain conditions, be
2
1 equitably tolled. See Jin Bo Zhao v. INS, 452 F.3d 154,
2 156-59 (2d Cir. 2006). The filing deadline may also be
3 excused when the movant demonstrates changed country
4 conditions. See U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.
5 § 1003.2(c)(3)(ii).
6 To merit equitable tolling, the movant must demonstrate
7 that he pursued his case with due diligence during the
8 period of time for which he seeks tolling. See Iavorski v.
9 I.N.S., 232 F.3d 124, 134-35 (2d Cir. 2000). “[N]o matter
10 how egregiously ineffective counsel’s assistance may have
11 been, an alien will not be entitled to equitable tolling
12 unless he can affirmatively demonstrate that he exercised
13 reasonable due diligence.” See Cekic v. INS, 435 F.3d 167,
14 170 (2d Cir. 2006). In this case, the BIA did not abuse its
15 discretion when it found that Lin did not exercise the
16 requisite due diligence. Lin knew, or should have known, of
17 his former counsel’s alleged ineffective assistance in March
18 2001 when the IJ denied his applications for relief based on
19 lack of prosecution. However, Lin did not file the
20 underlying motion to reopen until more than six years later.
21 See Iavorski, 232 F.3d at 134.
22 Lin argues that he did not comprehend the full extent
23 of his prior attorney’s negligent misrepresentation until
3
1 “recently,” after his current attorney filed a FOIA request
2 and he was able to obtain and review his case record.
3 However, Lin does not specify which portions of the record
4 triggered this new awareness concerning his former
5 attorney’s ineffective assistance. Further, this contention
6 is unconvincing given that Lin’s ineffective assistance
7 claim is based on his former counsel’s withdrawal from
8 representation during the March 2001 hearing before the IJ
9 and his failure to file an asylum application on Lin’s
10 behalf. Accordingly, the BIA reasonably found that Lin
11 failed to exercise the due diligence required to succeed on
12 an ineffective assistance of counsel claim. See id.13 In addition, the BIA did not abuse its discretion in
14 finding that the documentation Lin submitted with his motion
15 did not suffice to establish either changed country
16 conditions in China or Lin’s prima facie eligibility for
17 relief. See 8 U.S.C. § 1229(a)(c)(7)(C)(ii); INS v. Abudu,
18 485 U.S. 94, 104-05 (1988). We have in other cases reviewed
19 the BIA’s consideration of Lin’s evidence, and evidence
20 similar to it, and found no error in the conclusion that
21 such evidence is insufficient to establish either material
22 changed country conditions or an objectively reasonable fear
23 of persecution. See Jian Hui Shao v. Mukasey, 546 F.3d 138,
4
1 156-65 (2d Cir. 2008). The BIA did not err in finding the
2 bulk of Lin’s evidence “cumulative and duplicative” of
3 documentation that it had reviewed in other family-planning
4 cases. See Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d
5 Cir. 2006) (noting that while the BIA must consider evidence
6 it is “asked to consider time and again[,] . . . it may do
7 so in summary fashion without a reviewing court presuming
8 that it has abused its discretion”).
9 In addition, the BIA did not err in giving little
10 weight to the unauthenticated copy of a letter purportedly
11 issued by the Family Planning Committee of Tingjiang
12 Province to inform Lin that he would be subject to sanctions
13 under the family-planning policy should he return to China.
14 This document was suspect not only because it was
15 unauthenticated but also because it was obtained
16 specifically for the purpose of supporting Lin’s motion.
17 See Yan Song Wong v. Keisler, 505 F.3d 615, 622 (7th Cir.
18 2007)(finding that the agency reasonably declined to give
19 weight to a letter from the authorities in the petitioner’s
20 hometown stating that he would be subject to sterilization
21 because the document was unauthenticated and obtained
22 specifically for the purpose of applying for asylum); cf.
23 Xiao Xing Ni v. Gonzales, 494 F.3d 260, 270 (2d Cir. 2007)
5
1 (“nothing is easier than to submit to an appellate court for
2 the first time documents that, if authentic, would appear to
3 be official statements of the Chinese government. If not
4 these documents or those documents, some others would do.”)
5 (internal citations and quotations omitted). Accordingly,
6 the BIA reasonably found that none of the evidence that Lin
7 submitted warranted the reopening of his proceedings.
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of
10 removal that the Court previously granted in this petition
11 is VACATED, and any pending motion for a stay of removal in
12 this petition is DISMISSED as moot. Any pending request for
13 oral argument in this petition is DENIED in accordance with
14 Federal Rule of Appellate Procedure 34(a)(2), and Second
15 Circuit Local Rule 34(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
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