Yun Qing Liu v. Holder ( 2010 )

08-6056-ag
Liu v. Holder
BIA
A077 007 739
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 11 th day of March, two thousand ten.
PRESENT:
GUIDO CALABRESI,
ROBERT A. KATZMANN,
BARRINGTON D. PARKER,
Circuit Judges.
_________________________________________
YUN QING LIU,
Petitioner,
v. 08-6056-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL, *
Respondent.
_________________________________________
FOR PETITIONER: Theodore N. Cox, New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Christopher C. Fuller,
Senior Litigation Counsel; Zoe J.
*
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 respondent in this case.
Heller, Trial Attorney, Civil
Division, Office of Immigration
Litigation, United States Department
of Justice, Washington, DC
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DENIED.
Petitioner Yun Qing Liu, a native and citizen of the
People’s Republic of China, seeks review of the November 18,
2008 order of the BIA, which denied her motion to reopen.
In re Yun Qing Liu, No. A077 007 739 (B.I.A. Nov. 18, 2008).
We assume the parties’ familiarity with the underlying facts
and procedural history of the case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d
Cir. 2005) (per curiam). Here, the BIA did not abuse its
discretion in denying Liu’s motion to reopen as untimely
because she filed it over five years after the BIA issued
its final order of removal. See 8 C.F.R. § 1003.2(c)(2).
In some circumstances, under the doctrine of equitable
tolling, ineffective assistance of counsel can extend the
filing deadline for an alien’s motion to reopen. See Cekic
2
v. INS, 435 F.3d 167, 170 (2d Cir. 2006). In order to
warrant equitable tolling, however, the alien is required to
demonstrate that she exercised “due diligence” in pursuing
her claims during “both the period of time before the
ineffective assistance of counsel was or should have been
discovered and the period from that point until the motion
to reopen is filed.” See Rashid v. Mukasey, 533 F.3d 127,
132 (2d Cir. 2008).
The BIA did not act arbitrarily or capriciously in
concluding that Liu failed to exercise due diligence.
Though “there is no period of time which we can say is per
se unreasonable,” Jian Hua Wang v. BIA, 508 F.3d 710, 715
(2d Cir. 2007), Liu filed her first motion to reopen three
years after she reasonably should have discovered that she
received ineffective assistance of counsel. Liu asserts
that she did not become aware of the ineffective assistance
of her previous counsel until May 2008, when she filed her
second motion to reopen. The record is clear that, in
February 2003, Liu was aware that the initial BIA notice of
decision denying her petition for asylum and withholding of
removal had been mailed to an incorrect address. She points
to no evidence indicating that, despite this fact, she
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diligently pursued her claim between 2003 and 2006, save for
an unspecific contention that, at some point after February
2003, she sought a second opinion from other lawyers. We
find that the petitioner has not met her burden in
demonstrating due diligence, see Rashid, 533 F.3d at 132,
and the BIA therefore did not err in finding that the
circumstances do not warrant equitable tolling.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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