Yun Jin Gao v. Holder , 441 F. App'x 51 ( 2011 )

10-5081-ag
Gao v. Holder
BIA
A073 167 535
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 November, two thousand eleven.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 REENA RAGGI,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _____________________________________
12
13 YUN JIN GAO,
14 Petitioner,
15 10-5081-ag
16 v. NAC
17
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Douglas B. Payne, New York, NY
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; David V. Bernal, Assistant
27 Director; Yedidya Cohen, Trial
28 Attorney, Office of Immigration
29 Litigation, Civil Division, United
30 States Department of Justice,
31 Washington, D.C.
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, Yun Jin Gao, a native and citizen of China,
6 seeks review of a November 19, 2010, order of the BIA
7 denying his motion to reopen his proceedings. In re Yun Jin
8 Gao, No. A073 167 535 (B.I.A. Nov. 19, 2010). We assume the
9 parties’ familiarity with the underlying facts and
10 procedural history of the case.
11 We review the agency’s denial of a motion to reopen for
12 abuse of discretion. Kaur v. BIA, 413 F.3d 232, 233 (2d
13 Cir. 2005) (per curiam). An alien may only file one motion
14 to reopen and must do so within 90 days of the agency’s
15 final administrative decision. 8 U.S.C. § 1229a(c)(7)(A),
16 (C); 8 C.F.R. § 1003.2(c)(2). Gao’s 2010 motion to reopen
17 was untimely, as he was ordered removed in 2002. See
18 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2).
19 Gao argues, however, that the agency abused its
20 discretion in denying his motion because the time limitation
21 should have been excused based on ineffective assistance of
22 counsel. In order to prevail on a claim of ineffective
2
1 assistance of counsel, a movant must, among other
2 requirements, demonstrate that he has exercised “due
3 diligence” in vindicating his rights. See Cekic v. INS, 435
4 F.3d 167, 171 (2d Cir. 2006). Gao failed to demonstrate
5 that he took any steps to vindicate his rights in the eight
6 years between filing his November 2002 petition for review
7 of the agency’s denial of his first motion to reopen, in
8 which he complains of ineffective assistance of counsel, and
9 filing his September 2010 second motion to reopen. He also
10 did not indicate whether he relied on any attorney
11 assurances that his claim was being pursued. See Rashid v.
12 Mukasey, 533 F.3d 127, 132 (2d Cir. 2008); Jian Hua Wang v.
13 BIA, 508 F.3d 710, 715 (2d Cir. 2007).
14 As Gao failed to demonstrate due diligence, we do not
15 reach his argument that the agency erred in determining that
16 he failed to demonstrate that he was prejudiced by counsel’s
17 ineffective assistance. See Cekic, 435 F.3d at 170.
18 Moreover, we lack jurisdiction to review the BIA’s
19 discretionary decision not to exercise its sua sponte
20 authority to reopen Gao’s proceedings, and thus dismiss the
21 petition for review to the extent Gao asserts sua sponte
22 reopening was warranted. See Azmond Ali v. Gonzales, 448
3
1 F.3d 515, 518 (2d Cir. 2006); Cyrus v. Keisler, 505 F.3d 1972 (2d Cir. 2007).
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any pending motion
5 for a stay of removal in this petition is DISMISSED as moot.
6 Any pending request for oral argument in this petition is
7 DENIED in accordance with Federal Rule of Appellate
8 Procedure 34(a)(2), and Second Circuit Local Rule
9 34.1(b).34.1(b).
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
12
4