Chuan Hui Sun v. Lynch , 614 F. App'x 553 ( 2015 )

14-2144
Sun v. Lynch
BIA
A087 789 443
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.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
23rd day of June, two thousand fifteen.
PRESENT:
JON O. NEWMAN,
BARRINGTON D. PARKER,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
CHUAN HUI SUN,
Petitioner,
v. 14-2144
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,*
Respondent.
_____________________________________
*
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 the Respondent in this case.
FOR PETITIONER: Yee Ling Poon; Deborah Niedermeyer,
Of Counsel, Law Office of Yee Ling
Poon, LLC, New York, New York.
FOR RESPONDENT: Benjamin C. Mizer, Acting Assistant
Attorney General; Katharine E.
Clark, Senior Litigation Counsel;
Christina J. Martin, Trial Attorney,
Office of Immigration Litigation,
United States Department of Justice,
Washington, D.C.
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 Chuan Hui Sun, a native and citizen of the
People’s Republic of China, seeks review of a May 29, 2014,
denying his motion to reopen his removal proceedings. In re
Chuan Hui Sun, No. A087 789 443 (B.I.A. May 29, 2014). We assume
the parties’ familiarity with the underlying facts and
procedural history in this case.
We have reviewed the BIA’s denial of Sun’s motion to reopen
for abuse of discretion. See Ali v. Gonzales, 448 F.3d 515,
517 (2d Cir. 2006) (per curiam). It is undisputed that Sun’s
motion to reopen was untimely filed because the agency’s final
order of removal was entered in May 2013 and Sun did not file
his motion to reopen until February 2014, well beyond the 90-day
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deadline. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
§ 1003.2(c)(2). The BIA did not err in declining to equitably
toll the time period based on Sun’s ineffective assistance of
counsel claim.
In order to warrant equitable tolling, even assuming that
prior counsel was ineffective, an alien is required to
demonstrate “due diligence” in pursuing his claim 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.” Rashid v. Mukasey, 533
F.3d 127, 132 (2d Cir. 2008); see also Cekic v. INS, 435 F.3d
167, 170 (2d Cir. 2006). The BIA did not err in finding that
Sun failed to demonstrate due diligence. He did not take any
action to pursue reopening in the eight months that passed
between the BIA issuing his final order of removal and his
retention of current counsel in response to his arrest by the
Department of Homeland Security. See Jian Hua Wang v. BIA, 508
F.3d 710, 715-16 (2d Cir. 2007).
The BIA did not err in rejecting his argument that he was
unaware of his former counsel’s ineffective assistance because
of his limited English. To the contrary, Sun was aware of the
issues that form the basis for his allegations of ineffective
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assistance because they were explicitly discussed with him
through an interpreter at his hearing before an immigration
judge.
Accordingly, the BIA did not err in finding that Sun failed
to demonstrate due diligence. That determination was
dispositive of Sun’s ineffective assistance of counsel claim,
and we need not consider the BIA’s alternative dispositive
determination that Sun failed to demonstrate that he was
prejudiced by his former counsel’s purportedly ineffective
assistance. See Rashid, 533 F.3d at 131; see also Rabiu v. INS,
41 F.3d 879, 882-83 (2d Cir. 1994).
Nevertheless, we note that Sun’s allegations of
ineffective assistance did not impact several of the IJ’s
findings, which remain as valid bases for the agency’s
underlying adverse credibility determination. Furthermore,
as the BIA found, there is no merit to Sun’s assertion that he
was prejudiced (his credibility damaged) by his former
counsel’s failure to submit his wife’s family planning booklet.
That booklet is inconsistent with Sun’s testimony, and thus
would have supported the adverse credibility determination.
See 8 U.S.C. § 1158(b)(1)(B)(iii) (providing that an adverse
credibility determination may be based on record
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inconsistencies); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162,
165-66 (2d Cir. 2008). Therefore, as the IJ’s adverse
credibility findings remain largely untouched by Sun’s
allegations of ineffective assistance, the BIA did not err in
finding that Sun failed to establish that he was prejudiced as
required to succeed on his ineffective assistance claim. See
Rabiu, 41 F.3d at 882-83.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and 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 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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