Gong Zi Song v. Holder , 474 F. App'x 41 ( 2012 )

11-3950
Song v. Holder
BIA
A073 641 886
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 15th day of August, two thousand twelve.
PRESENT:
JON O. NEWMAN,
GERARD E. LYNCH,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
GONG ZI SONG,
Petitioner,
v. 11-3950
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Wendy Tso, New York, New York.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Ernesto H. Molina,
Jr., Assistant Director; Gladys M.
Steffens Guzman, 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 Gong Zi Song, a native and citizen of the
People’s Republic of China, seeks review of a September 2,
2011, order of the BIA denying her motion to reopen. In re
Gong Zi Song, No. A073 641 886 (B.I.A. Sept. 2, 2011). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. Kaur v. BIA, 413 F.3d 232, 233 (2d
Cir. 2005). Song challenges the BIA’s finding that she was
not prejudiced by her former attorney Nolan Cheng’s failure
to include evidence of her eligibility for adjustment of
status with her 2002 motion to reopen.
To prevail on a claim of ineffective assistance, a
movant “must show that [her] counsel’s performance was so
ineffective as to have impinged upon the fundamental
fairness of the hearing in violation of the [F]ifth
[A]mendment [D]ue [P]rocess [C]lause.” Rabiu v. INS, 41
F.3d 879, 882 (2d Cir. 1994) (internal quotation marks
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omitted). To show a deprivation of fundamental fairness, a
movant must allege facts to establish, inter alia, that
“[s]he was prejudiced by [her] counsel’s performance.” Id.
(internal citation and quotation marks omitted). To show
actual prejudice, a petitioner must demonstrate that she
would have been entitled to relief but for the alleged
ineffective assistance. Id. (internal citation omitted).
The BIA did not err in concluding that Song was not
prejudiced by Cheng’s conduct because even if Cheng had
included Song’s application for adjustment of status and her
family petition approval notice with her 2002 motion to
reopen, the motion still would have been untimely. See
8 C.F.R. § 3.2(c)(2) (1997) (90-day time limitation for
motions to reopen); see also Rabiu, 41 F.3d at 882-83,
citing Miranda-Lores v. INS, 17 F.3d 84, 85 (5th Cir. 1994)
(finding that proving actual prejudice requires a petitioner
to establish that “had the application been filed, [s]he
would have been entitled to relief”); Matter of Valerde-
Pacheco, 23 I&N Dec. 253, 256 (BIA 2002) (a motion to reopen
to pursue an application of adjustment of status, based on a
marriage entered into after the commencement of proceedings,
may be granted only, if, inter alia, the motion was timely
filed).
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Song also argues that the BIA’s prejudice finding was
nevertheless erroneous because the time limitation for her
2002 motion to reopen could have been tolled by the
ineffective assistance of her original attorneys at her
merits hearing. This argument is unavailing, however,
because she provided no evidence to support this claim. See
Debeatham v. Holder, 602 F.3d 481, 484-85 (2d Cir. 2010)
(describing the evidence that a petitioner arguing
ineffective assistance must present). While not a
jurisdictional prerequisite, we refrain from considering an
ineffective assistance of counsel argument where, as here,
the petitioner failed to raise it before the BIA. Rabiu, 41
F.3d at 882, citing Arango-Aradondo v. INS, 13 F.3d 610, 614
(2d Cir. 1994).
Finally, Song’s argument that her due process rights
were violated because of Cheng’s incompetence is defeated by
her failure to show that she was prejudiced by Cheng’s
conduct. Rabiu, 41 F.3d at 883; Debeatham, 602 F.3d at 484.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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