Xiaolan Shi v. Michael B. Mukasey , 326 F. App'x 414 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-1841
___________
Xiaolan Shi, *
*
Petitioner, *
* Petition for Review of an
v. * Order of the Board of
* Immigration Appeals.
1
Eric H. Holder, Jr., Attorney General *
of the United States, *
* [UNPUBLISHED]
Respondent. *
___________
Submitted: June 11, 2009
Filed: June 16, 2009
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Before RILEY, SMITH, and BENTON, Circuit Judges.
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PER CURIAM.
Chinese citizen Xiaolan Shi petitions for review of the Board of Immigration
Appeals’ (BIA’s) order denying her motion to reopen. After careful review, we
conclude the BIA acted within its discretion in denying Shi’s motion to reopen,
because the motion was filed more than thirteen months after the final removal order,
see 8 U.S.C. § 1229a(c)(7)(C)(i) (motion to reopen must be filed within 90 days of
1
Eric H. Holder, Jr., has been appointed to serve as Attorney General of the
United States, and is substituted as respondent pursuant to Federal Rule of Appellate
Procedure 43(c).
final removal order), and because Shi had previously sought reopening, see 8 U.S.C.
§ 1229a(c)(7)(A) (alien may file one motion to reopen). See Habchy v. Gonzales, 471
F.3d 858, 861 (8th Cir. 2006) (standard of review). We also conclude the BIA did not
abuse its discretion in refusing to waive the numerical and time limitations based on
the alleged ineffective assistance of counsel because Shi failed to comply with the
Lozada2 requirements. See id. at 863-64; Hernandez-Moran v. Gonzales, 408 F.3d
496, 499 (8th Cir. 2005).
Accordingly, we deny the petition.
______________________________
2
Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988) (petitioner must submit
affidavit attesting to relevant facts; must inform counsel of allegations and allow
response; and must state whether complaint has been filed with appropriate
disciplinary authorities, and if not, why not).
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