Bi Yu Gao v. Lynch , 633 F. App'x 18 ( 2016 )

14-3747
Gao v. Lynch
BIA
A070 699 977
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 5th day of February , two thousand sixteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 REENA RAGGI,
9 GERARD E. LYHCH,
10 Circuit Judges.
11 _____________________________________
12
13 BI YU GAO,
14 Petitioner,
15
16 v. 14-3747
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Theodore N. Cox, New York,
24 New York.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; John S.
28 Hogan, Assistant Director; Todd J.
29 Cochran, Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review is
8 DENIED.
9 Petitioner Bi Yu Gao, a native and citizen of the People’s
10 Republic of China, seeks review of a September 11, 2014,
11 decision of the BIA denying her motion to reopen. In re Bi Yu
12 Gao, No. A070 699 977 (B.I.A. Sept. 11, 2014). We assume the
13 parties’ familiarity with the underlying facts and procedural
14 history in this case.
15 We have reviewed the BIA’s denial of Gao’s motion to reopen
16 for abuse of discretion, see Ali v. Gonzales, 448 F.3d 515, 517
17 (2d Cir. 2006), and the BIA’s factual findings regarding country
18 conditions under the substantial evidence standard, see Jian
19 Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (per
20 curiam). It is undisputed that Gao’s motion to reopen was
21 untimely filed and numerically barred because it was her third
22 motion filed more than ten years after the agency’s order of
23 removal became final in 2003. See 8 U.S.C. § 1229a(c)(7)(A),
24 (C)(i); 8 C.F.R. § 1003.2(c)(2).
2
1 The BIA did not err in declining to equitably toll the
2 period for Gao to file her motion based on her claim of
3 ineffective assistance of counsel. In order to warrant
4 equitable tolling, even assuming that prior counsel was
5 ineffective, an alien is required to demonstrate “due
6 diligence” in pursuing her claim during “both the period of time
7 before the ineffective assistance of counsel was or should have
8 been discovered and the period from that point until the motion
9 to reopen is filed.” Rashid v. Mukasey, 533 F.3d 127, 132 (2d
10 Cir. 2008); see also Cekic v. INS, 435 F.3d 167, 170 (2d Cir.
11 2006).
12 Gao failed to demonstrate due diligence. She did not claim
13 to have taken any action to pursue reopening based on the alleged
14 ineffective assistance of her former counsel in the more than
15 eight years that passed between the BIA’s denial of her first
16 motion to reopen (for which she claimed counsel’s performance
17 was deficient) and her motion to reopen. See Jian Hua Wang v.
18 BIA, 508 F.3d 710, 715-16 (2d Cir. 2007) (per curiam).
19 The BIA also reasonably found that Gao failed to
20 demonstrate a material change in conditions in China as required
21 to excuse the motion from the time and number limitations. See
22 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.
3
1 § 1003.2(c)(3). The U.S. Department of State’s International
2 Religious Freedom Reports demonstrate that the Chinese
3 government has continuously viewed unfavorably and punished
4 unregistered Christian groups since before Gao’s underlying
5 hearing in 2002. Therefore, the record does not compel the
6 conclusion that conditions in China have materially changed.
7 See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also Jian Hui Shao, 546
8 F.3d at 171.
9 Accordingly, because neither equitable tolling nor the
10 changed country conditions exception applied, the BIA did not
11 abuse its discretion in denying Gao’s motion to reopen as
12 untimely and number-barred. See 8 U.S.C. § 1229a(c)(7)(A),
13 (C).
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, the pending motion
16 for a stay of removal in this petition is DISMISSED as moot.
17 FOR THE COURT:
18 Catherine O=Hagan Wolfe, Clerk
4