Bao Tai Jiang v. Holder ( 2010 )

09-2133-ag
Jiang v. Holder
BIA
A095 716 702
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 4 th day of February, two thousand ten.
5
6 PRESENT:
7 ROBERT D. SACK,
8 RICHARD C. WESLEY,
9 PETER W. HALL,
10 Circuit Judges.
11 _______________________________________
12
13 BAO TAI JIANG, ALSO KNOWN AS JIANG BAO
14 TAI,
15 Petitioner,
16
17 v. 09-2133-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
1 FOR PETITIONER: Nathan Weill, New York, New York
2
3 FOR RESPONDENT: Tony West, Assistant Attorney
4 General, Jennifer Paisner Williams,
5 Senior Litigation Counsel, Colette
6 J. Winston, Attorney, Office of
7 Immigration Litigation, Civil
8 Division, United States Department
9 of Justice, Washington, D.C.
10 UPON DUE CONSIDERATION of this petition for review of a
11 decision of the Board of Immigration Appeals (“BIA”), it is
12 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
13 review is DENIED.
14 Petitioner Bao Tai Jiang, a native and citizen of the
15 People’s Republic of China, seeks review of the April 22,
16 2009 order of the BIA denying her motion to reopen. In re
17 Bao Tai Jiang, No. A 095 716 702 (B.I.A. Apr. 22, 2009). We
18 assume the parties’ familiarity with the underlying facts
19 and procedural history of the case.
20 As an initial matter, the Government asserts that we
21 lack jurisdiction to review the BIA’s refusal to reopen
22 Jiang’s proceedings sua sponte based on her assertion that
23 she received ineffective assistance from her prior counsel.
24 The Government is correct that we lack jurisdiction to
25 review the BIA’s exercise of its sua sponte authority.
26 Azmond Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006).
27 Here, however, despite the fact that Jiang herself requested
2
1 that the BIA exercise its sua sponte authority, her motion
2 was best construed as seeking equitable tolling of the
3 filing deadline. See Jie Chen v. Gonzales, 436 F.3d 76, 78-
4 79 (2d Cir. 2006). We are not without jurisdiction to
5 review the BIA’s refusal to equitably toll the filing
6 deadline based on a claim of ineffective assistance of
7 counsel. See, e.g., Iavorski v. INS, 232 F.3d 124, 134-35
8 (2d Cir. 2000).
9 Assuming this Court has such jurisdiction, we conclude
10 that the BIA did not abuse its discretion in rejecting
11 Jiang’s ineffective assistance of counsel claim. See Cekic
12 v. INS, 435 F.3d 167, 170 (2d Cir. 2006). Although
13 ineffective assistance of counsel may provide a basis for
14 equitably tolling the filing deadline for motions to reopen,
15 id. at 171, the alien is required to demonstrate that she
16 exercised “due diligence” in pursuing her claims during
17 “both the period of time before the ineffective assistance
18 of counsel was or should have been discovered and the period
19 from that point until the motion to reopen is filed,” see
20 Rashid v. Mukasey, 533 F.3d 127, 135 (2d Cir. 2008). The
21 BIA reasonably found that Jiang failed to demonstrate that
22 she acted with due diligence in pursuing her ineffective
23 assistance of counsel claim “because of the almost 2 year
3
1 delay between the Immigration Judge’s decision of January
2 30, 2007, and [Jiang’s] December 15, 2008, motion to
3 reopen.” See Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d
4 Cir. 2007). Indeed, to the extent Jiang alleged that her
5 prior counsel failed to present one of her claims, she
6 should have become aware of that failure at the time of her
7 merits hearing and the IJ’s oral decision. Because the BIA
8 did not abuse its discretion in declining to equitably toll
9 the filing deadline for Jiang’s motion to reopen, we need
10 not consider the BIA’s alternative finding that she was not
11 prejudiced by counsel’s purportedly ineffective assistance.
12 See Rashid, 533 F.3d at 135.
13 For the foregoing reasons, the petition for review is
14 DENIED. Having completed our review, we DISMISS the
15 petitioner's pending motion for a stay of removal as moot.
16
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
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