He Sheng Chen v. Holder ( 2012 )

11-2654-ag
Chen v. Holder
BIA
LaForest, IJ
A070 906 815
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 24th day of September, two thousand twelve.
PRESENT:
DENNIS JACOBS,
Chief Judge,
SUSAN L. CARNEY,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
HE SHENG CHEN,
Petitioner,
v. 11-2654-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gary J. Yerman, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Douglas E. Ginsburg, Assistant
Director; Jessica R. C. Malloy, 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 He Sheng Chen, a native and citizen of the
People’s Republic of China, seeks review of a June 6, 2011
decision of the BIA affirming the April 28, 2010 decision of
Immigration Judge (“IJ”) denying his motion to reopen his
immigration proceedings. In re He Sheng Chen, No. A070 906
815 (B.I.A. June 6, 2011), aff’g No. A070 906 815 (Immig. Ct.
N.Y. City Apr. 28, 2010). We assume the parties’ familiarity
with the underlying facts and procedural history of the case.
For completeness’ sake, we review both the IJ’s and the
BIA’s opinions. See Wangchuck v. DHS, 448 F.3d 524, 528 (2d
Cir. 2006). We review the BIA’s denial of a motion to reopen
for abuse of discretion, mindful of the Supreme Court’s
admonition that such motions are “disfavored.” Ali v.
Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (per curiam)
(citing INS v. Doherty, 502 U.S. 314, 322-23 (1992)).
Generally, a motion to reopen must be filed within 90 days of
the final administrative order. See 8 U.S.C.
§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Although the
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90-day period may be equitably tolled when the motion is based
on a claim of ineffective assistance of counsel, in order to
warrant equitable tolling, an alien must 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).
Here, over eleven years elapsed between Chen’s September
1998 withdrawal of his asylum application and his April 2010
motion to reopen his immigration proceedings. Chen argues
that it was not until 2009, when his current counsel explained
to him that his previous counsel had improperly presented his
asylum application, that he discovered that his previous
counsel had been ineffective, and that he has acted with due
diligence since that discovery. We have held, however, that
“even an alien who is unfamiliar with the technicalities of
immigration law can, under certain circumstances, be expected
to comprehend that he has received ineffective assistance
without being explicitly told so by an attorney.” Rashid, 533
F.3d at 132, n.3; see also Cekic, 435 F.3d at 171 (holding
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that although petitioners reasonably relied on their
attorney’s assurances that he was actively pursuing their
case, they should have known they received ineffective
assistance once they “were aware that there was an order of
removal against them”). Chen’s affidavit supports the
conclusion that he was aware in 1998 that his attorney was
ineffective as it shows that he withdrew his asylum
application after realizing that his attorney had failed to
prepare or to request of him any supporting evidence. The
agency reasonably concluded that, at the time of that
withdrawal and the IJ’s grant of voluntary departure, Chen was
aware that he had received ineffective assistance of counsel.
Chen argues that Rashid is inapplicable because the facts
of his case are comparable to other cases in which we have
held that an alien may reasonably rely on an attorney’s
assurances that his case is being pursued. Although in
certain contexts an attorney’s assurances may excuse an
alien’s failure to pursue his claims, see, e.g., Cekic, 435
F.3d at 171; Aris v. Mukasey, 517 F.3d 595, 600 (2d Cir.
2008), Chen does not argue that he failed to pursue his claims
because he believed that an attorney was pursuing them for
him, or because an attorney had given him incorrect advice.
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Rather, the record supports the conclusion that Chen was aware
in 1998 that he received ineffective assistance but that he
failed to exercise due diligence in pursuing his claims from
that date until April 2010.
The agency did not abuse its discretion in finding that
Chen’s motion to reopen was untimely. Because that finding is
dispositive, we decline to consider Chen’s argument that he is
prima facie eligible for asylum, withholding of removal, and
CAT relief. See 8 U.S.C. § 1229a(c)(7)(C). Finally, we lack
jurisdiction to consider Chen’s argument that the agency
abused its discretion in failing to exercise its authority to
reopen his proceedings sua sponte. See Ali v. Gonzales, 448
F.3d 515, 518 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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