Cheng Shu Xu v. Holder ( 2014 )

14-243
Xu v. Holder
BIA
A089 253 586
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 29th day of October, two thousand fourteen.
5
6 PRESENT:
7 ROBERT D. SACK,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _____________________________________
12
13 CHENG SHU XU,
14 Petitioner,
15
16 v. 14-243
17 NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Stuart Altman, New York, New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Mary Jane Candaux, Assistant
28 Director, Office of Immigration
29 Litigation; Robbin K. Blaya, Trial
1 Attorney, Office of Immigration
2 Litigation, United States Department
3 of Justice, Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Cheng Shu Xu, a native and citizen of the
10 People’s Republic of China, seeks review of a January 13,
11 2014, decision of the BIA denying her motion to reopen. In
12 re Cheng Shu Xu, No. A089 253 586 (B.I.A. Jan. 13, 2014).
13 We review the BIA’s denial of a motion to reopen for abuse
14 of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.
15 2005) (per curiam). We assume the parties’ familiarity with
16 the underlying facts and procedural history of the case.
17 The BIA’s denial of Xu’s motion to reopen as untimely
18 was not an abuse of discretion. A motion to reopen
19 generally must be filed no later than 90 days after the date
20 on which the final administrative decision has been rendered
21 in the proceedings sought to be reopened. 8 U.S.C.
22 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Xu’s
23 September 2013 motion was untimely from the agency’s March
24 2012 final administrative decision.
2
1 In some instances, an alien may toll the time period
2 for filing a motion to reopen by demonstrating ineffective
3 assistance of counsel. See Rashid v. Mukasey, 533 F.3d 127,
4 130 (2d Cir. 2008). In order to toll the time period, in
5 addition to complying with the procedural requirements for
6 an ineffective assistance of counsel claim, the alien must
7 show prejudice as a result of the ineffective assistance,
8 and must have exercised due diligence in pursuing the claim.
9 See Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007).
10 An alien is required to demonstrate “due diligence” in
11 pursuing claims during “both the period of time before the
12 ineffective assistance of counsel was or should have been
13 discovered and the period from that point until the motion
14 to reopen is filed.” Rashid, 533 F.3d at 132.
15 The BIA did not abuse its discretion in denying Xu’s
16 request to equitably toll the filing deadline. First, as
17 the BIA determined, Xu failed to show due diligence in
18 pursuing her ineffective assistance of counsel claim. She
19 discovered her attorney’s failure to include her 2004 forced
20 abortion in her asylum application at her 2009 merits
21 hearing. But she failed to raise the issue at the hearing
22 or on appeal. She then waited approximately 18 months after
3
1 the BIA’s decision to file her motion to reopen. This delay
2 evidenced a lack of due diligence. See Zheng Zhong Chen v.
3 Gonzales, 437 F.3d 267, 270 (2d Cir. 2006)(holding a delay
4 of 20 months sufficient to deny equitable tolling); Rashid,
5 533 F.3d at 132-33 (holding 14 months sufficient to deny).
6 Because a showing of due diligence is a prerequisite to
7 excusing the untimely filing of a motion to reopen, Xu’s
8 failure to show that diligence is dispositive. We decline
9 to reach the BIA’s alternative determination that Xu failed
10 to show prejudice. INS v. Bagamasbad, 429 U.S. 24, 25
11 (1976)(“As a general rule courts and agencies are not
12 required to make findings on issues the decision of which is
13 unnecessary to the results they reach.”).
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, any pending motion
16 for stay of removal is DISMISSED as moot. Any pending
17 request for oral argument is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2), and Second
19 Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O'Hagan Wolfe, Clerk
22
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