Lee Ting v. Holder ( 2010 )

09-3532-ag
Lee v. Holder
BIA
Nelson, IJ
A073 776 201
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 1 st day of September, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JON O. NEWMAN,
10 JOSÉ A. CABRANES,
11 Circuit Judges.
12 ______________________________________
13
14 LEE TING,
15 Petitioner,
16 09-3532-ag
17 v. NAC
18
19
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 ______________________________________
24
25 FOR PETITIONER: Douglas B. Payne, New York, New
26 York.
27
28 FOR RESPONDENT: Tony West, Assistant Attorney
29 General, Civil Division; Cindy S.
30 Ferrier, Senior Litigation Counsel;
31 Michelle Y.F. Sarko, Attorney,
32 Office of Immigration Litigation,
33 United States Department of Justice,
34 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Lee Ting (“Lee”), a native and citizen of
6 the People’s Republic of China, seeks review of a July 20,
7 2009, order of the BIA affirming Immigration Judge (“IJ”)
8 Barbara A. Nelson’s April 30, 2008, denial of his motion to
9 reopen. In re Lee Ting, No. A073 776 201 (B.I.A. July 20,
10 2009); aff’g No. A073 776 201 (Immig. Ct. N.Y. City April
11 30, 2008). We assume the parties’ familiarity with the
12 underlying facts and procedural history of the case.
13 We review the BIA’s denial of a motion to reopen for
14 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
15 Cir. 2006). An alien may only file one motion to reopen and
16 must do so within 90 days of the agency’s final
17 administrative decision. 8 C.F.R. § 1003.2(c)(2). However,
18 the time and number limitations do not apply to motions to
19 reopen in absentia exclusion proceedings if the alien
20 establishes reasonable cause for his failure to appear at
21 the exclusion hearing. See 8 C.F.R.
22 § 1003.23(b)(4)(iii)(B); Matter of N-B-, 22 I. & N. Dec.
23 590, 591 (BIA 1999).
2
1 The BIA found that the ineffective assistance of Lee’s
2 former counsel, who advised him not to attend the August
3 1995 hearing at which he was ordered removed in absentia,
4 constituted reasonable cause for Lee’s failure to appear.
5 However, the BIA went on to find that Lee failed to exercise
6 due diligence in seeking to reopen his proceedings because
7 he waited nearly thirteen years after the in absentia
8 exclusion order to file his motion to reopen. See Cekic v.
9 INS, 435 F.3d 167, 170 (2d Cir.2006) (noting that “no matter
10 how egregiously ineffective counsel’s assistance may have
11 been, an alien will not be entitled to equitable tolling
12 unless he can affirmatively demonstrate that he exercised
13 reasonable due diligence during the time period sought to be
14 tolled”); see also Rashid v. Mukasey, 533 F.3d 127, 132 (2d
15 Cir. 2008) (in order to equitably toll the filing deadline
16 for a motion to reopen based on ineffective assistance of
17 counsel, an alien must demonstrate that he or she has
18 exercised due diligence both before the ineffective
19 assistance of counsel was or should have been discovered and
20 the period from that point until the motion to reopen is
21 filed). Even though Lee was in exclusion proceedings and
22 there was no deadline applicable to his motion to reopen, it
3
1 does not follow that the BIA was foreclosed from denying his
2 motion as a matter of discretion, based on its finding that
3 Lee failed to exercise due diligence in the thirteen years
4 after he became aware he had been ordered excluded. See
5 Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005). Our
6 requirement that aliens exercise due diligence in the
7 equitable tolling context applies with equal force in this
8 situation. See Iavorski v. INS, 232 F.3d 124, 134 (2d Cir.
9 2000). Furthermore, Lee failed to exhaust his argument that
10 considerations of family unity should outweigh his lack of
11 due diligence by not raising it in his motion to reopen or
12 his brief to the BIA. See Foster v. INS, 376 F.3d 75, 78
13 (2d Cir. 2004). In any event, the regulations to which Lee
14 cites, 8 C.F.R. § 236.10-18, are inapposite to his case, as
15 they relate to immediate relatives of Seasonal Agricultural
16 Workers and “Amnesty or Cuban/Haitian entrants.”
17 Moreover, the BIA also did not abuse its discretion in
18 denying reopening as Lee was statutorily ineligible to apply
19 to the IJ for adjustment of status because he was in
20 exclusion proceedings. See 8 C.F.R. §§ 245.2(a)(1) and
21 1245.2(a)(1); see also Matter of Castro, 21 I. & N. Dec. 37922 (BIA 1996).
4
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any pending motion
3 for a stay of removal in this petition is DISMISSED as moot.
4 Any pending request for oral argument in this petition is
5 DENIED in accordance with Federal Rule of Appellate
6 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
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