Tai v. Sessions ( 2018 )

17-313
Tai v. Sessions
BIA
A079 141 088
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
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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 TO 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 Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 25th day of July, two thousand eighteen.
PRESENT:
JON O. NEWMAN,
GERARD E. LYNCH,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
ZOU ZONG TAI, AKA ZONG TAI ZOU,
Petitioner,
v. 17-313
NAC
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Jay Ho Lee, New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Matthew B.
George, Benjamin Mark Moss, Trial
Attorneys, Office of Immigration
Litigation, United States
Department of Justice, Washington,
DC.
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 Zou Zong Tai, a native and citizen of the
People’s Republic of China, seeks review of a January 11,
2017, decision of the BIA denying his motion to reopen as
untimely. In re Zou Zong Tai, No. A079 141 088 (B.I.A. Jan.
11, 2017). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
The applicable standards of review are well established.
See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir.
2008). It is undisputed that Tai’s 2016 motion to reopen
was untimely because it was filed more than nine years
after his removal order became final in 2007. See 8 U.S.C.
§ 1229a(c)(7)(C)(i) (setting 90-day deadline for motions to
reopen); 8 C.F.R. § 1003.2(c)(2) (same). Ineffective
assistance of counsel may equitably toll the time
limitation on a motion to reopen if the movant has
exercised “due diligence” in pursuing the claim. See
Rashid v. Mukasey, 533 F.3d 127, 130-31 (2d Cir. 2008).
The movant “is required to exercise due diligence both
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before and after he has or should have discovered
ineffective assistance of counsel.” Id. at 132. “[T]here
is no period of time which . . . is per se unreasonable,
and, therefore, disqualifies a petitioner from equitable
tolling–or, for that matter, any period of time that is per
se reasonable.” Jian Hua Wang v. BIA, 508 F.3d 710, 715
(2d Cir. 2007).
The BIA did not abuse its discretion in concluding that
Tai failed to establish due diligence throughout the entire
nine-year period he sought to toll. See Ke Zhen Zhao v.
U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (“An
abuse of discretion may be found . . . where the Board’s
decision provides no rational explanation, inexplicably
departs from established policies, is devoid of any
reasoning, or contains only summary or conclusory
statements; that is to say, where the Board has acted in an
arbitrary or capricious manner.” (citations omitted)). Tai
claimed to have consulted six to seven law offices from
2008 to 2010 and twelve to thirteen law offices from 2011
to 2016; however, he submitted only business cards to
corroborate these 18 to 20 consultations. Moreover, Tai
merely asserted that each law office declined to assist him
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because his petition for review from the denial of his
initial application had been unsuccessful; he did not
elaborate further on those consultations or indicate
whether he discussed his prior attorneys’ performance or
the possibility of filing a motion to reopen his
proceedings. Regardless, even crediting Tai’s estimate
that he visited at least one law office every six months
from 2011 to 2016, the BIA did not abuse its discretion in
finding lack of due diligence because Tai did not explain
why he waited six months or more between visits during this
five-year period. See Rashid, 533 F.3d at 133 (“[A]n alien
is required to exercise due diligence during
the entire period he seeks to toll.”). Moreover, given
that Tai was ordered removed in 2007 and has no
authorization to remain in the United States, the BIA
reasonably determined that his sporadic law office
consultations did not reflect diligence. See Cekic v.
INS, 435 F.3d 167, 171-72 (2d Cir. 2006) (holding that two-
year delay between time petitioners learned of expiration
of their status and moved to reopen constituted a lack of
diligence).
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We reject Tai’s argument that the BIA’s reasoning was
insufficient. Given Tai’s minimal evidence to support his
claim, the lack of detail regarding any of his legal
consultations, and the BIA’s citation to authority requiring
due diligence throughout the entire period to be tolled, the
BIA’s conclusion that Tai did not demonstrate due diligence
was within its discretion.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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