Chao Yang v. Holder

09-1059-ag
Yang v. Holder
BIA
A072 484 965
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
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 7 th day of December, two thousand nine.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 ROBERT A. KATZMANN,
10 Circuit Judges.
11 ______________________________________
12
13 CHAO YANG,
14 Petitioner,
15 09-1059-ag
16 v. NAC
17
18 ERIC H. HOLDER JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Daniel B. Lundy, Barst & Mukamal
24 LLP, New York, New York.
1 FOR RESPONDENT: Tony West, Assistant Attorney
2 General; Carl H. McIntyre, Jr.,
3 Assistant Director; Francis W.
4 Fraser, Senior Litigation Counsel,
5 Office of Immigration Litigation,
6 United States Department of Justice,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioner, Chao Yang, a native and citizen of the
14 People’s Republic of China, seeks review of a February 12,
15 2009 order of the BIA denying his third motion to reopen his
16 exclusion proceedings. In re Chao Yang, No. A 072 484 965
17 (B.I.A. Feb. 12, 2009). We assume the parties’ familiarity
18 with the underlying facts and procedural history of the
19 case.
20 We review the BIA’s denial of a motion to reopen for
21 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
22 Cir. 2006). We find that the BIA did not err in denying
23 Yang’s untimely and number-barred motion. An alien may only
24 file one motion to reopen and must do so within 90 days of
25 the agency’s final administrative decision. 8 C.F.R.
26 § 1003.2(c)(2). However, the deadline may be equitably
27 tolled to accommodate claims of ineffective assistance of
2
1 counsel, so long as the movant has exercised “due diligence”
2 in vindicating his or her rights. See Cekic v. INS, 435
3 F.3d 167, 171 (2d Cir. 2006).
4 The BIA properly found that because Yang did not
5 demonstrate due diligence in filing his second motion to
6 reopen, he could not satisfy the prerequisite for equitable
7 tolling in the instant motion, filed 10 years after the
8 decision he sought to reopen was issued. We find the BIA
9 did not abuse its discretion in rejecting Yang’s ineffective
10 assistance of counsel claim, because even if Yang
11 demonstrated that he exercised due diligence in filling the
12 current motion, he would still have failed to demonstrate
13 that he exercised due diligence during the entire ten year
14 period he wishes to toll. See Iavorski v. U.S. I.N.S., 232
15 F.3d 124, 134 (2d Cir. 2000) (noting that “[t]his Court has
16 held that equitable tolling requires a party to pass with
17 reasonable diligence though the period it seeks to have
18 tolled.”) (internal quotation and alteration omitted).
19 Yang argues that the BIA abused its discretion by
20 declining to sua sponte reopen his proceedings or reissue
21 its decision. However, this Court lacks jurisdiction to
22 review those arguments because such decisions are “entirely
3
1 discretionary.” See Ali, 448 F.3d at 518. Similarly, this
2 Court lacks jurisdiction to review Yang’s challenge to the
3 agency’s underlying adverse credibility determination, as we
4 must confine our review to the denial of Yang’s third motion
5 to reopen and are precluded from reviewing any challenge to
6 the agency’s denial of his underlying claim for relief or
7 first motion to reopen. See Ke Zhen Zhao v. U.S. Dep’t of
8 Justice, 265 F.3d 83, 90 (2d Cir. 2001).
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any pending motion
11 for a stay of removal in this petition is DISMISSED as moot.
12 Any pending request for oral argument in this petition is
13 DENIED in accordance with Federal Rule of Appellate
14 Procedure 34(a)(2) and Second Circuit Local Rule 34(b).
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
18
19 By:___________________________
4