Hua Jin v. Holder

09-3664-ag
Jin v. Holder
BIA
A098 432 336
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 18 th day of August, two thousand ten.
PRESENT:
DENNIS JACOBS,
Chief Judge,
JON O. NEWMAN,
DENNY CHIN,
Circuit Judges.
_______________________________________
HUA JIN,
Petitioner,
v. 09-3664-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_________________________________________
FOR PETITIONER: Hua Jin, pro se, Monterey Park, CA.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Daniel E. Goldman, Senior Litigation
Counsel; Theo Nickerson, Trial
Attorney, Office of Immigration
Litigation, 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 Hua Jin, a native and citizen of China, seeks
review of an August 11, 2009 order of the BIA denying her
motion to reopen. In re Hua Jin, No. A098 432 336 (B.I.A.
Aug. 11, 2009). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d
Cir. 2005) (per curiam). An alien seeking to reopen
proceedings may file one motion to reopen no later than 90
days after the date on which the final administrative decision
was rendered. See 8 C.F.R. § 1003.2(c)(2). The alien must
demonstrate that the evidence offered in support of the motion
was not available and could not have been discovered or
presented at the former hearing. Id.
Here, the BIA reasonably denied Jin’s motion to reopen
because she failed to demonstrate that the evidence of her
former counsel’s alleged ineffective assistance was
unavailable or could not have been presented at her previous
hearing. Id. Rather, that evidence was available at her
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removal proceedings, during which Jin admitted that she lied
under oath at her bond proceeding upon the advice of her prior
counsel and documents from the bond hearing were admitted into
the record. Accordingly, as the BIA reasonably noted, Jin
could have pursued an ineffective assistance of counsel claim
either before the IJ in a motion to reopen or before the BIA.
Thus, the BIA did not err in denying her motion because she
failed to provide new, previously unavailable evidence. To
the extent Jin now asserts an ineffective assistance of
counsel claim against her second attorney, she failed to raise
that claim with the agency. Thus, the claim is unexhausted
and we lack jurisdiction to review it. Ling Zhong v. U.S.
Dep’t of Justice, 480 F.3d 104, 107 (2d Cir. 2007).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and 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(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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