Bai Xiang Lin v. Lynch ( 2015 )

14-1370
Lin v. Lynch
BIA
A079 141 366
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 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 14th day of September, two thousand fifteen.
5
6 PRESENT:
7 REENA RAGGI,
8 DEBRA ANN LIVINGSTON,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 BAI XIANG LIN,
14 Petitioner,
15
16 v. 14-1370
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,*
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Chunyu Jean Wang, Wang Law Office,
25 PLLC, Flushing, New York.
26
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Loretta E. Lynch is automatically substituted
for former Attorney General Eric H. Holder, Jr. as Respondent.
1 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
2 Attorney General; Song Park, Senior
3 Litigation Counsel; Surell Brady,
4 Trail Attorney, Office of
5 Immigration Litigation, United
6 States Department of Justice,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review is
12 DENIED.
13 Petitioner Bai Xiang Lin, a native and citizen of the
14 People’s Republic of China, seeks review of an April 11, 2014
15 decision of the BIA denying Lin’s motion to reopen. See In re
16 Bai Xiang Lin, No. A079 141 366 (B.I.A. Apr. 11, 2014). We
17 assume the parties’ familiarity with the underlying facts and
18 procedural history in this case.
19 We review the BIA’s denial of Lin’s motion for abuse of
20 discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.
21 2006). An alien seeking to reopen proceedings may file one
22 motion to reopen no later than 90 days after the date on which
23 the final administrative decision was rendered. See 8 U.S.C.
24 § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). There is
25 no dispute that Lin’s January 2014 motion to reopen is both
26 untimely and number barred because (a) the final administrative
2
1 order of removal was issued in 2009, and (b) Lin had previously
2 filed a motion to reopen in December of that year.
3 In certain circumstances, however, this time period may be
4 equitably tolled where an alien demonstrates ineffective
5 assistance of counsel. See Rashid v. Mukasey, 533 F.3d 127,
6 130 (2d Cir. 2008). In addition to complying with the
7 procedural requirements for an ineffective assistance of
8 counsel claim, see Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A.
9 1988), the alien must show (a) that his constitutional right
10 to due process has been denied as a result of the ineffective
11 assistance, and (b) that he exercised due diligence in pursuing
12 the claim for the entire time period he seeks to have tolled.
13 See Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007).
14 The BIA did not abuse its discretion in denying Lin’s
15 request to equitably toll the filing deadline based on
16 ineffective assistance of counsel. The BIA reasonably
17 concluded that Lin failed to show due diligence: Lin waited over
18 four years to raise his ineffective assistance claim. Lin was
19 aware that his attorney’s recommended strategy had failed as
20 early as September 2009, when the BIA dismissed his consolidated
21 appeal, but he raised his ineffective assistance claim for the
22 first time in January 2014. He provides no evidence beyond his
3
1 own assertions that he was diligently pursuing an ineffective
2 assistance claim during those years. See Zheng Zhong Chen v.
3 Gonzales, 437 F.3d 267, 270 (2d Cir. 2006) (holding a delay of
4 20 months sufficient to deny equitable tolling); Rashid, 533
5 F.3d at 132-33 (holding 14 months sufficient to deny).
6 Nor did the BIA err in concluding that Lin failed to
7 demonstrate a denial of due process as a result of the alleged
8 ineffective assistance. See Cekic v. INS, 435 F.3d 167, 171
9 (2d Cir. 2007) (requiring a showing of denial of due process
10 to prevail on ineffective assistance claim). Lin argues that
11 his attorney should have advised him to file his own separate
12 applications for relief because those claims had merit, but Lin
13 did not append any application for relief to his motion, and
14 the motion did not describe any potential claims for relief.
15 In the absence of any showing of prejudice, the BIA did not abuse
16 its discretion in declining to toll the filing deadline. See
17 Ali, 448 F.3d at 517.
18 For the foregoing reasons, the petition for review is
19 DENIED. As we have completed our review, any stay of removal
20 that the Court previously granted in this petition is VACATED,
21 and any pending motion for a stay of removal in this petition
22 is DISMISSED as moot. Any pending request for oral argument
4
1 in this petition is DENIED in accordance with Federal Rule of
2 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
3 34.1(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk of Court
5