Yu Bai Xiang v. Holder ( 2010 )

09-1593-ag
Bai Xiang v. Holder
BIA
A 097 749 118
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 29 th day of March, two thousand ten.
PRESENT:
RALPH K. WINTER,
REENA RAGGI,
DEBRA ANN LIVINGSTON,
Circuit Judges.
______________________________________
YU BAI XIANG,
Petitioner,
09-1593-ag
v. NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Don W. Pak, Philadelphia,
Pennsylvania.
FOR RESPONDENT: Tony West, Assistant Attorney
General, Civil Division; Keith I.
McManus, Senior Litigation Counsel;
Michele Y.F. Sarko, Attorney, Office
of Immigration Litigation, Civil
Division, United States Department
of Justice, Washington, D.C.
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 Yu Bai Xiang, a native and citizen of the
People’s Republic of China, seeks review of a March 20, 2009
order of the BIA denying her motion to reopen her removal
proceedings. In re Yu Bai Xiang, No. A 097 749 118 (B.I.A.
Mar. 20, 2009). We assume the parties’ familiarity with the
underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
Cir. 2006). An alien may only file one motion to reopen and
must do so within 90 days of the agency’s final administrative
decision. 8 C.F.R. § 1003.2(c)(2). Under the doctrine of
equitable tolling, however, these time and number restrictions
may be relaxed to accommodate claims of ineffective assistance
of counsel, so long as the movant has exercised “due
diligence” in seeking to vindicate his or her rights. See
Rashid v. Mukasey, 533 F.3d 127, 130-31 (2d Cir. 2008). Here,
the BIA did not abuse its discretion in denying petitioner’s
untimely motion to reopen based on her failure to exercise
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such diligence.
Petitioner had knowledge of the facts and events
supporting her ineffective assistance claim no later than
March 2008. She waited over eight months, until December
2008, however, to raise the claim in her second untimely
motion to reopen. See Jian Hua Wang v. BIA, 508 F.3d 710,
715-16 (2d Cir. 2007) (holding that waiting eight months to
file motion to reopen did not demonstrate due diligence).
Even if we were to credit petitioner’s argument that “it was
reasonable to wait for a decision [on the pending motion to
reissue and reopen] before filing an ineffective assistance of
counsel claim,” Pet’r’s Reply at 4, she waited nearly five
months after the BIA issued that decision in July 2008 before
filing her second motion to reopen.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any pending motion
for a stay of removal in this petition is DISMISSED as moot.
Any pending request for oral argument in this petition is
DENIED in accordance with Federal Rule of Appellate Procedure
34(a)(2), and Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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