Guo Guang Wu v. Holder ( 2009 )

08-0200-ag
Wu v. Holder
BIA
A079-331-702
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 10 th day of December, two thousand nine.
PRESENT:
ROGER J. MINER,
JOHN M. WALKER, JR.,
REENA RAGGI,
Circuit Judges.
______________________________________
GUO GUANG WU
Petitioner,
08-0200-ag
v. NAC
ERIC H. HOLDER, JR., 1
Respondent.
______________________________________
1
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.
FOR PETITIONER: Robert J. Adinolfi, New York, New
York.
FOR RESPONDENT: Tony West, Assistant Attorney General,
Civil Division; John S. Hogan, Senior
Litigation Counsel; Channah M. Farber,
Trial Attorney, Office of Immigration
Litigation, Civil Division, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DENIED.
Petitioner Guo Guang Wu, a native and citizen of the
People’s Republic of China, seeks review of a December 13,
2007 order of the BIA denying his motion to reopen removal
proceedings. In re Guo Guang Wu, No. A 079 331 702 (B.I.A.
Dec. 13, 2007). We review the BIA’s denial of a motion to
reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d
515, 517 (2d Cir. 2006). In doing so, we assume the parties’
familiarity with the facts and the record of prior
proceedings, which we reference only as necessary to explain
our decision.
In general, an alien may file only one motion to reopen
and must do so within 90 days of the final administrative
order of removal. 8 C.F.R. § 1003.2(c)(2). There is no such
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time limitation, however, where the alien demonstrates the
existence of material evidence of “changed circumstances
arising in the country of nationality” and such evidence “was
not available and could not have been discovered or presented
at the previous hearing.” 2 8 C.F.R. § 1003.2(c)(3)(ii).
The 90-day limitations period for motions to reopen also
may be equitably tolled to accommodate ineffective assistance
of counsel claims. To prevail on such a claim, an alien must
demonstrate, inter alia, that the alleged ineffective
assistance prejudiced the outcome of his case. Rabiu v. INS,
41 F.3d 879, 882-83 (2d Cir. 1994) (“In order for [the
petitioner] to show that his attorney’s failure . . . caused
him actual prejudice, he must make a prima facie showing that
he would have been eligible for the relief and that he could
have made a strong showing in support of his application.”);
see also Esposito v. INS, 987 F.2d 108, 111 (2d Cir. 1993)
(per curiam).
Here, the BIA did not abuse its discretion in rejecting
Wu’s ineffective assistance of counsel claim because Wu failed
to demonstrate that his counsel’s allegedly ineffective
2
Although Wu alleged changed country conditions in
his initial motion to reopen, he does not seek review of
the BIA’s rejection of that claim.
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assistance prejudiced the outcome of his proceedings. See
Rabiu v. INS, 41 F.3d at 882-83; Esposito v. INS, 987 F.2d at
111. The Immigration Judge’s decision to deny Wu’s claim for
asylum was premised on an adverse credibility finding and
certain material inconsistencies, infirmities, and omissions
in the relevant evidence. As the BIA correctly concluded, Wu
has presented no evidence – apart from his own conclusory
assertions – in support of his motion to reopen explaining how
prior counsel’s improved performance would have helped his
case.
Because Wu’s failure to demonstrate prejudice is
dispositive of his ineffective assistance claim, see Rabiu v.
INS, 41 F.3d at 882-83, we need not reach his remaining
arguments.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any pending motion
for a stay of removal in this petition is DISMISSED as moot.
Any pending request for oral argument in this petition is
DENIED in accordance with Federal Rule of Appellate Procedure
4
34(a)(2), and Second Circuit Local Rule 34(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
By:___________________________
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