Jin Yao Liu v. Holder , 363 F. App'x 849 ( 2010 )

09-1871-ag
Liu v. Holder
BIA
A 078 317 496
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 11 th day of February, two thousand ten.
5
6 PRESENT:
7 ROBERT D. SACK,
8 REENA RAGGI,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 ______________________________________
12
13 JIN YAO LIU, a.k.a. JINYAO LIU,
14 Petitioner,
15 09-1871-ag
16 v. NAC
17
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Joan Xie, New York, NY.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General, Civil Division; Daniel E.
27 Goldman, Senior Litigation Counsel;
28 Matthew A. Spurlock, Trial Attorney,
29 Office of Immigration Litigation,
30 Civil Division, United States
31 Department of Justice, Washington,
32 D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner, Jin Yao Liu, a native and citizen of the
6 People’s Republic of China, seeks review of an April 20,
7 2009 order of the BIA denying his motion to reopen his
8 removal proceedings. In re Jin Yao Liu, No. A 078 317 496
9 (B.I.A. Apr. 20, 2009). We assume the parties’ familiarity
10 with the underlying facts and procedural history of the
11 case.
12 We review the BIA’s denial of a motion to reopen for
13 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
14 Cir. 2006). We find that the BIA did not err in denying
15 Liu’s untimely motion to reopen. An alien may only file one
16 motion to reopen and must do so within 90 days of the
17 agency’s final administrative decision. 8 C.F.R.
18 § 1003.2(c)(2). However, the deadline may be equitably
19 tolled to accommodate claims of ineffective assistance of
20 counsel, so long as the movant has exercised “due diligence”
21 in vindicating his or her rights. See Cekic v. INS, 435
22 F.3d 167, 171 (2d Cir. 2006).
2
1 Liu asserts that he was prejudiced by the failure of
2 his former attorney to appear at his hearing. However, the
3 BIA agreed that Liu showed prejudice, but found that he
4 failed to exercise due diligence in pursuing his claim. See
5 Cekic, 435 F.3d at 170-71. As the BIA found, Liu filed his
6 second motion to reopen nearly four years after its prior
7 decision and “did not take any apparent action until
8 sometime in 2008.” Therefore, despite Liu’s showing of
9 prejudice, the BIA did not err in finding that his failure
10 to exercise due diligence precluded him from succeeding on
11 his ineffective assistance of counsel claim. See id. at
12 170.
13 Liu argues that he could not have been aware of his
14 former attorneys’ failure to properly pursue a motion to
15 reopen based on ineffective assistance of counsel under
16 Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), before
17 2008. But the BIA’s December 2004 decision affirming the
18 IJ’s denial of Liu’s first motion to reopen stated that Liu
19 “has not presented a claim of ineffective assistance of
20 counsel that is compliant with our decision in Matter of
21 Lozada.” The BIA mailed a copy of its decision to Mr. Yu in
22 December 2004, and therefore it reasonably found that Liu
3
1 should have discovered the ineffective assistance of his
2 prior attorneys “a short time after the Board’s December 9,
3 2004” decision. See Ping Chen v. U.S. Attorney Gen., 502
4 F.3d 73, 77-78 (2d Cir. 2007). The BIA therefore did not
5 abuse its discretion in finding that Liu failed to exercise
6 due diligence in pursuing his claim where he waited four
7 years to file his motion to reopen and provided no evidence
8 indicating that he took any action during the period he
9 sought to toll. Rashid v. Mukasey, 533 F.3d 127, 132 (2d
10 Cir. 2008).
11 For the foregoing reasons, the petition for review is
12 DENIED.
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
15
16
17
4