Hui v. Garland ( 2021 )

18-3784
Hui v. Garland
BIA
A098 470 005
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 TO 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
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 24th day of March, two thousand twenty-one.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 RICHARD J. SULLIVAN,
9 STEVEN J. MENASHI,
10 Circuit Judges.
11 _____________________________________
12
13 HONGLIAN HUI,
14 Petitioner,
15
16 v. 18-3784
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent. *
21 _____________________________________
22
23 FOR PETITIONER: Jim Li, Esq., Shanshan Zheng,
24 Esq., Flushing, NY.
25
26 FOR RESPONDENT: Kohsei Ugumori , Senior Litigation
27 Counsel; Jesse D. Lorenz, Trial
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General
Merrick B. Garland is automatically substituted as Respondent.
1 Attorney, Office of Immigration
2 Litigation, United States
3 Department of Justice, Washington,
4 DC.
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Honglian Hui, a native and citizen of the
10 People’s Republic of China, seeks review of a November 26,
11 2018 decision of the BIA denying her motion to reopen her
12 administrative proceedings. In re Honglian Hui, No. A 098 470
13 005 (B.I.A. Nov. 26, 2018). We assume the parties’
14 familiarity with the underlying facts and procedural history.
15 We review the BIA’s denial of a motion to reopen for
16 abuse of discretion. See Debeatham v. Holder, 602 F.3d 481,
17 484 (2d Cir. 2010). An alien may file one motion to reopen
18 no later than 90 days after the final administrative decision.
19 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2).
20 Hui’s 2018 motion to reopen was untimely, as it was filed
21 almost four years after the BIA’s 2014 decision. Further,
22 her 2018 motion was number barred because she filed a previous
23 motion to reopen in 2017. Although the doctrine of equitable
2
1 tolling may provide an exception to these limitations where
2 an alien advances an argument of ineffective assistance of
3 counsel, we find no error in the BIA’s conclusion that
4 equitable tolling was not warranted here. To obtain such
5 tolling, a movant must show both ineffective assistance of
6 counsel and due diligence in raising that claim. See Rashid
7 v. Mukasey, 533 F.3d 127, 130–32 (2d Cir. 2008).
8 The BIA reasonably concluded that Hui failed to
9 demonstrate due diligence “during the entire period . . . she
10 seeks to toll,” which “includes both the period of time before
11 the ineffective assistance of counsel was or should have been
12 discovered and the period from that point until the motion to
13 reopen is filed.” Id. at 132. According to her 2018 motion,
14 Hui discovered the ineffective assistance of counsel in
15 January 2016 but did not hire present counsel until “early
16 2017” and did not file her first motion to reopen until
17 October 2017. Although she indicated that she called her
18 original counsel once and consulted another attorney, she did
19 not assert that she ever followed up and offers no explanation
20 for her extensive delay. Accordingly, the BIA reasonably
21 concluded that she did not demonstrate due diligence in the
3
1 21 months that elapsed between her discovery of the
2 ineffective assistance and her filing of her first motion to
3 reopen. Jian Hua Wang v. BIA, 508 F.3d 710, 715–16 (2d Cir.
4 2007) (upholding denial of reopening where petitioner waited
5 eight months to file motion); Cekic v. INS, 435 F.3d 167,
6 171–72 (2d Cir. 2006) (no diligence where petitioners waited
7 two years after discovering ineffective assistance and
8 submitted no evidence of actions taken); Rashid, 533 F.3d at
9 132–33 (no diligence where petitioner learned of BIA’s
10 adverse decision, made one phone call to counsel and then
11 waited 14 months to seek new counsel); Iavorski v. U.S. INS,
12 232 F.3d 124, 134–35 (2d Cir. 2000) (no diligence where
13 petitioner waited two years to file motion).
14 As Hui’s lack of due diligence is dispositive of
15 equitable tolling, we do not reach the BIA’s additional
16 finding that she failed to show the prejudice needed to state
17 an ineffective assistance claim. See Rashid, 533 F.3d at 131
18 (“[N]o matter how egregiously ineffective counsel’s
19 assistance may have been, an alien will not be entitled to
20 equitable tolling unless he can affirmatively demonstrate
21 that he exercised reasonable due diligence in pursuing his
4
1 claim.” (internal quotation omitted)); see also INS v.
2 Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts
3 and agencies are not required to make findings on issues the
4 decision of which is unnecessary to the results they reach.”).
5 Finally, although the BIA has the authority to reopen
6 sua sponte despite the time and number limitations, see
7 8 C.F.R. § 1003.2(a), we lack jurisdiction to review that
8 “entirely discretionary” decision. Ali v. Gonzales, 448 F.3d
9 515, 518 (2d Cir. 2006).
10 For the foregoing reasons, the petition for review is
11 DENIED. All pending motions and applications are DENIED and
12 stays VACATED.
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe,
15 Clerk of Court
5