Hui Xu v. Lynch ( 2015 )

13-2433
Xu v. Lynch
BIA
A077 309 697
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 28th day of August, two thousand fifteen.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 DEBRA ANN LIVINGSTON,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 HUI XU,
14 Petitioner,
15
16 v. 13-2433
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,*
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Charles Christophe, Christophe Law
24 Group, P.C, New York, New York.
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Loretta E. Lynch is automatically
substituted for former Attorney General Eric H. Holder, Jr.,
as the Respondent in this case.
1
2 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
3 General; Song Park, Senior
4 Litigation Counsel; Sunah Lee, Trial
5 Attorney, Office of Immigration
6 Litigation, United States Department
7 of Justice, Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED in part and DISMISSED in part.
13 Petitioner Hui Xu, a native and citizen of the People’s
14 Republic of China, seeks review of the May 31, 2013,
15 decision of the BIA denying his motion to reopen. In re Hui
16 Xu, No. A077 309 697 (B.I.A. May 31, 2013). We assume the
17 parties’ familiarity with the underlying facts and
18 procedural history of the case.
19 The BIA’s denial of Xu’s motion to reopen was not an
20 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
21 (2d Cir. 2006) (per curiam). Absent certain enumerated
22 circumstances which are not present here, an alien may
23 generally move to reopen no later than 90 days after the
24 date of the final administrative decision. See 8 U.S.C.
25 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). There is no
26 dispute that Xu’s 2013 motion was untimely because his final
2
1 administrative order was issued in 2003. 8 U.S.C.
2 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). In some
3 instances, however, the agency may equitably toll the 90
4 days if an alien demonstrates ineffective assistance of
5 counsel and that he exercised due diligence in pursuing his
6 claims during “both the period of time before the
7 ineffective assistance of counsel was or should have been
8 discovered and the period from that point until the motion
9 to reopen [wa]s filed.” Rashid v. Mukasey, 533 F.3d 127,
10 132 (2d Cir. 2008).
11 The BIA reasonably found that Xu’s ten-year delay in
12 raising ineffective assistance, a claim Xu admits was
13 apparent at the time of his 2002 hearing, did not reflect
14 due diligence. See Jian Hua Wang v. B.I.A., 508 F.3d 710,
15 715 (2d Cir. 2007) (per curiam) (citing several cases
16 finding that a petitioner has failed to demonstrate due
17 diligence where he or she waited two years or longer to take
18 steps to reopen a proceeding). Despite Xu’s assertion that
19 he lacked understanding of English and U.S. laws, he did not
20 explain why he did not simply seek new counsel to articulate
21 the claim for him. The BIA therefore did not err in
22 declining to toll the filing deadline, and consequently did
3
1 not abuse its discretion in denying Xu’s motion to reopen as
2 untimely. See Rashid, 533 F.3d at 131-32; Ali, 448 F.3d at
3 517.
4 To the extent that Xu challenges the BIA’s denial of
5 sua sponte reopening, we dismiss the petition for review
6 because we lack jurisdiction to consider the discretionary
7 determination that Xu did not demonstrate exceptional
8 circumstances. See Ali, 448 F.3d at 518.
9 For the foregoing reasons, the petition for review is
10 DENIED in part and DISMISSED in part. As we have completed
11 our review, any stay of removal that the Court previously
12 granted in this petition is VACATED, and any pending motion
13 for a stay of removal in this petition is DISMISSED as moot.
14 Any pending request for oral argument in this petition is
15 DENIED in accordance with Federal Rule of Appellate
16 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
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