Xiang You Zheng v. Holder

09-0440-ag
Zheng v. Holder
BIA
A098 776 131
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 3 rd day of February, two thousand ten.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _________________________________________
12
13 XIANG YOU ZHENG, also known as
14 ZHENG XIANG YOU,
15 Petitioner,
16
17 v. 09-0440-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _________________________________________
23
24 FOR PETITIONER: Eric Zheng, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; M. Jocelyn Lopez Wright,
28 Senior Litigation Counsel; Anna
29 Nelson, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DENIED.
5 Petitioner Xiang You Zheng, a native and citizen of the
6 People’s Republic of China, seeks review of the January 5,
7 2009 order of the BIA, which denied his motion to reopen.
8 In re Xiang You Zheng, No. A098 776 131 (B.I.A. Jan. 5,
9 2009). We assume the parties’ familiarity with the
10 underlying facts and procedural history of the case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d
13 Cir. 2005) (per curiam). Here, the BIA did not abuse its
14 discretion in denying Zheng’s untimely motion to reopen.
15 See 8 C.F.R. § 1003.2(c)(2).
16 Although ineffective assistance of counsel may provide
17 a basis for equitably tolling the filing deadline for
18 motions to reopen, Cekic v. INS, 435 F.3d 167, 170-71 (2d
19 Cir. 2006), the alien is required to demonstrate that he
20 exercised “due diligence” in pursuing his claims during
21 “both the period of time before the ineffective assistance
2
1 of counsel was or should have been discovered and the period
2 from that point until the motion to reopen is filed,” see
3 Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008).
4 The BIA reasonably found that Zheng failed to
5 demonstrate that he acted with due diligence in pursuing his
6 ineffective assistance of counsel claim between March 2007,
7 when he discovered that his appeal was dismissed by the BIA,
8 and July 2008 when he filed his motion to reopen. See Jian
9 Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007). Because
10 the BIA did not abuse its discretion in declining to
11 equitably toll the time limitation for filing Zheng’s
12 motion, we need not consider the BIA’s alternative finding
13 that he failed to demonstrate compliance with the
14 requirements set forth in Matter of Lozada, 19 I. & N. Dec.
15 637 (BIA 1988).
16 Finally, we decline to consider Zheng’s unexhausted due
17 process arguments, Lin Zhong v. U.S. Dep’t of Justice, 480
18 F.3d 104, 107 n.1, 122 (2d Cir. 2007), and lack jurisdiction
19 to consider his challenge to the BIA’s refusal to reopen his
20 proceedings sua sponte, see Ali v. Gonzales, 448 F.3d 515,
21 518 (2d Cir. 2006).
3
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
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