Yi Da Lin v. Holder , 454 F. App'x 16 ( 2012 )

10-5207-ag
Lin v. Holder
BIA
Weisel, IJ
A070 896 924
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.
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 4th day of January, two thousand twelve.
PRESENT:
JON O. NEWMAN,
ROBERT A. KATZMANN,
SUSAN L. CARNEY,
Circuit Judges.
_________________________________________
YI DA LIN,
Petitioner,
v. 10-5207-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_________________________________________
FOR PETITIONER: Wendy Tso, New York, New York.
FOR RESPONDENT: Tony West, Asistant Attorney General;
Terri J. Scadron, Assistant Director;
Lisa Morinelli, Trial Attorney, Office
of Immigration Litigation, United
States Department of Justice, Washing-
ton, 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 Yi Da Lin, a native and citizen of the
People’s Republic of China, seeks review of a November 30,
2010, decision of the BIA, affirming the June 8, 2010, order
of Immigration Judge (“IJ”) Robert D. Weisel denying his
motion to reopen. In re Yi Da Lin, No. A070 896 924 (B.I.A.
Nov. 30, 2010), aff’g No. A070 896 924 (Immig. Ct. N.Y. City
June 8, 2010). We assume the parties’ familiarity with the
underlying facts and procedural history of the case.
As an initial matter, we note that the agency erred in
referring to Lin’s motion, which sought to present new
evidence in support of rescinding an in absentia removal
order, as a motion to reconsider as opposed to a motion to
reopen. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d
83, 90 (2d Cir. 2001) (providing that a motion to reconsider
must specify error in a prior agency decision, whereas a
motion to reopen must present new facts and evidence).
However, remand to correct this error would be futile because,
as discussed below, the agency reasonably considered the new
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evidence and arguments made in Lin’s motion as if it were a
motion to reopen and we can confidently predict that its
analysis would be the same on remand. See Shunfu Li v.
Mukasey, 529 F.3d 141, 150 (2d Cir. 2008).
We have reviewed the denial of Lin’s motion to reopen for
abuse of discretion. See Alrefae v. Chertoff, 471 F.3d 353,
357 (2d Cir. 2006). An order of removal entered in absentia
may be rescinded only: (1) upon a motion filed within 180 days
after the date of the order of removal if the alien
demonstrates that the failure to appear was because of
exceptional circumstances; or (2) upon a motion to reopen
filed at any time if the alien demonstrates that he did not
receive notice as required or demonstrates that he was in
federal or state custody and the failure to appear was through
no fault of his own. 8 U.S.C. § 1229a(b)(5)(C); 8 C.F.R.
§ 1003.23(b)(4)(ii). Although Lin claimed not to have
received his Notice to Appear because it was provided to him
in English, we have rejected the argument that a Notice to
Appear is defective because it is not read to an alien in his
native language. See Lopes v. Gonzales, 468 F.3d 81, 84-85
(2d Cir. 2006). Therefore, Lin’s motion rested on his
argument that exceptional circumstances, namely the
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ineffective assistance of his immigration services agency,
caused his failure to appear at his hearing, and his motion
was subject to a 180-day time limitation. See id.; see also
8 U.S.C. § 1229a(b)(5)(C); 8 C.F.R. § 1003.23(b)(4)(ii). That
motion, filed in 2010, was undisputably untimely as it was
filed more that eleven years after the IJ’s 1998 in absentia
order of removal. See 8 U.S.C. § 1229a(b)(5)(C); 8 C.F.R.
§ 1003.23(b)(4)(ii).
The agency did not abuse its discretion in declining to
equitably toll the time period for filing Lin’s motion because
he failed to demonstrate that he exercised due diligence in
pursuing reopening based on the ineffective assistance of an
immigration services agency. In order to warrant equitable
tolling, even assuming that a movant demonstrated 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, 131-32 (2d Cir. 2008); see also Cekic v. INS, 435
F.3d 167, 170 (2d Cir. 2006). We have noted that, in
considering whether a petitioner exercised due diligence,
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“there is no period of time which we can say is per se
unreasonable, and, therefore, disqualifies a petitioner from
equitable tolling–or, for that matter, any period of time that
is per se reasonable.” Jian Hua Wang v. BIA, 508 F.3d 710,
715 (2d Cir. 2007). Here, the agency reasonably found that
Lin failed to demonstrate that he acted with due diligence
because, aside from asking unidentified friends and agencies
for advice regarding how to proceed immediately after learning
that his agency had closed in 1998, he failed to take any
action in his proceedings for more than eleven years, until he
was detained in 2010. See Cekic, 435 F.3d at 171; see also
Jian Hua Wang, 508 F.3d at 715. Thus, as the agency
reasonably concluded that Lin failed to demonstrate due
diligence in pursuing his claim, it did not err in declining
to toll the time period for filing his motion to reopen. See
Jian Hua Wang, 508 F.3d at 715-16.
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
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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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