Mao Lin v. Holder , 531 F. App'x 156 ( 2013 )

12-2144
Lin v. Holder
BIA
A077 322 368
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 6th day of September, two thousand thirteen.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 GERARD E. LYNCH,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 MAO LIN,
14 Petitioner,
15
16
17 v. 12-2144
18 NAC
19
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25
26 FOR PETITIONER: Thomas V. Massucci, New York, New
27 York.
28
29 FOR RESPONDENT: Stuart F. Delery, Principal Deputy
30 Assistant Attorney General; Luis E.
31 Perez, Senior Litigation Counsel;
32 Dawn S. Conrad, Trial Attorney,
1 Office of Immigration Litigation,
2 Civil Division, United States
3 Department of Justice, Washington,
4 D.C.
56 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED in part and DISMISSED in part.
10 Petitioner Mao Lin, a native and citizen of China,
11 seeks review of an April 27, 2012, decision of the BIA
12 denying his motion to reopen. In re Mao Lin, No. A077 322
13 368 (B.I.A. Apr. 27, 2012). We assume the parties’
14 familiarity with the underlying facts and procedural history
15 in this case.
16 We have reviewed the BIA’s denial of Lin’s motion to
17 reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d
18 232, 233 (2d Cir. 2005) (per curiam). It is undisputed that
19 Lin’s motion to reopen was untimely filed as the agency’s
20 final order of removal was entered in 2002 and Lin did not
21 file his motion to reopen until 2011, well beyond the 90-day
22 deadline. See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R.
23 § 1003.2(c)(2). Moreover, the BIA did not err in declining
24 to equitably toll the applicable time period based on Lin’s
25 ineffective assistance claim.
2
1 In order to warrant equitable tolling, even assuming
2 that prior counsel was ineffective, an alien is required to
3 demonstrate “due diligence” in pursuing his claim during
4 “both the period of time before the ineffective assistance
5 of counsel was or should have been discovered and the period
6 from that point until the motion to reopen is filed.”
7 Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008); see
8 also Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006). The
9 BIA did not err in finding that Lin failed to demonstrate
10 due diligence because he admitted discovering the alleged
11 ineffective assistance in 2002, and, aside from “talking to
12 lawyers” in the subsequent years, he did not assert that he
13 took any actions to pursue reopening until he filed his
14 motion nearly a decade later, in 2011. See Jian Hua Wang v.
15 BIA, 508 F.3d 710, 715 (2d Cir. 2007).
16 Additionally, even though Lin’s ineffective assistance
17 claim was based on allegations against a non-attorney
18 immigration consultant, the BIA did not err by requiring Lin
19 to comply to the extent practicable with the procedural
20 requirements for raising an ineffective assistance of
21 counsel claim detailed in Matter of Lozada, 19 I. & N. Dec.
22 637 (B.I.A. 1988). See Omar v. Mukasey, 517 F.3d 647, 651
3
1 (2d Cir. 2008). Accordingly, the BIA did not abuse its
2 discretion in rejecting Lin’s ineffective assistance of
3 counsel claim, and we deny his petition for review in this
4 regard. See Rashid, 533 F.3d at 131; see also Omar, 517
5 F.3d at 651.
6 Although we generally lack jurisdiction to consider the
7 BIA’s “entirely discretionary” decision regarding whether to
8 reopen removal proceedings sua sponte, Ali v. Gonzales, 448
9 F.3d 515, 518 (2d Cir. 2006), we retain jurisdiction to
10 consider an argument that the agency declined to exercise
11 its sua sponte authority based on a misperception of the
12 law, see Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir.
13 2009). Here, contrary to Lin’s contention, the BIA did not
14 mischaracterize his motion to reopen because, as the BIA
15 concluded, he ultimately sought the same relief as in his
16 initial proceedings. Accordingly, we dismiss the petition
17 for review to the extent that it challenges the BIA’s
18 decision regarding whether to exercise its sua sponte
19 authority. See Mahmood, 570 F.3d at 469.
20
21
22
4
1 For the foregoing reasons, the petition for review is
2 DENIED in part and DISMISSED in part. As we have completed
3 our review, the pending motion for a stay of removal in this
4 petition is DENIED as moot.
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
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