Lin v. Sessions

16-2629
Lin v. Sessions
BIA
A078 863 023
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 30th day of May, two thousand eighteen.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 RICHARD C. WESLEY,
9 PETER W. HALL,
10 Circuit Judges.
11 _____________________________________
12
13 TAO LIN, AKA ALEXANDER CHEN,
14 Petitioner,
15
16 v. 16-2629
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Yee Ling Poon, Deborah Niedermeyer,
24 Law Office of Yee Ling Poon, LLC, New
25 York, NY.
26
27 FOR RESPONDENT: Laura Halliday Hickein, Trial
28 Attorney, Shelley R. Goad, Assistant
29 Director, Office of Immigration
30 Litigation, for Chad A. Readler,
1 Acting Assistant Attorney General,
2 United States Department of Justice,
3 Washington, DC.
4
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 is
8 DENIED.
9 Petitioner Tao Lin, a native and citizen of the People’s
10 Republic of China, seeks review of a June 29, 2016, decision
11 of the BIA denying his motion to reopen his removal proceedings.
12 In re Tao Lin, No. A 078 863 023 (B.I.A. June 29, 2016). We
13 assume the parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 We review the BIA’s denial of Lin’s motion to reopen for
16 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
17 Cir. 2006) (per curiam). It is undisputed that Lin’s motion
18 to reopen was untimely because it was filed approximately 12
19 years after his removal order became final in 2004. See
20 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Lin
21 argues that the time limit should be tolled based on the
22 ineffective assistance of his prior counsel.
23 The BIA did not abuse its discretion in declining to
2
1 equitably toll the time for Lin to file his motion. The time
2 limit may be excused based on ineffective assistance of counsel
3 if the movant establishes (1) deficient representation;
4 (2) prejudice as a result of that deficiency; and (3) that the
5 movant exercised due diligence in moving to reopen. Rashid v.
6 Mukasey, 533 F.3d 127, 130-31 (2d Cir. 2008). Even assuming
7 that Lin’s prior counsel was ineffective, Lin was required to
8 demonstrate “due diligence” in pursuing his claim during “both
9 the period of time before the ineffective assistance of counsel
10 was or should have been discovered and the period from that point
11 until the motion to reopen [wa]s filed.” Id. at 132.
12 Lin failed to demonstrate due diligence. He did not
13 identify any action he took between 2004 and his wife’s
14 naturalization in 2014. Nor did he explain the delay between
15 that time and the filing of his motion to reopen in 2016. See
16 Jian Hua Wang v. BIA, 508 F.3d 710, 715–16 (2d Cir. 2007) (per
17 curiam) (finding insufficient diligence where four years passed
18 between removal order and motion to reopen and petitioner failed
19 to establish any action during eight months of that period).
20 Because the diligence finding was dispositive of Lin’s
21 ineffective assistance of counsel claim, we do not reach the
3
1 BIA’s alternative dispositive determination that Lin failed to
2 show prejudice. See Rashid, 533 F.3d at 131 (requiring showing
3 of diligence “no matter how egregiously ineffective counsel’s
4 assistance may have been” (quoting Cekic v. INS, 435 F.3d 167,
5 170 (2d Cir. 2006))); see also INS v. Bagamasbad, 429 U.S. 24,
6 25 (1976) (per curiam) (“As a general rule courts and agencies
7 are not required to make findings on issues the decision of which
8 is unnecessary to the results they reach.”).
9 To the extent Lin challenges the BIA’s decision not to
10 reopen sua sponte, we lack jurisdiction to consider that ruling
11 because it is “entirely discretionary.” Ali, 448 F.3d at 518.
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of removal
14 that the Court previously granted in this petition is VACATED,
15 and any pending motion for a stay of removal in this petition
16 is DISMISSED as moot. Any pending request for oral argument
17 in this petition is DENIED in accordance with Federal Rule of
18 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
19 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
4