Haisong Li v. Holder

13-64
Li v. Holder
BIA
A089 254 475
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 24th day of April, two thousand fourteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 GUIDO CALABRESI,
9 JOSÉ A. CABRANES,
10 Circuit Judges.
11 _____________________________________
12
13 HAISONG LI, AKA LI HAISONG,
14 Petitioner,
15
16 v. 13-64
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Robert J. Adinolfi, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delerey, Assistant
26 Attorney General; John S. Hogan,
27 Senior Litigation Counsel; Robbin K.
28 Blaya, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 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 Haisong Li, a native and citizen of the People’s
6 Republic of China, seeks review of the December 12, 2012,
7 decision of the BIA denying her motion to reopen. In re
8 Haisong Li, No. A089 254 475 (B.I.A. Dec. 12, 2012). We
9 assume the parties’ familiarity with the underlying facts
10 and procedural history in this case.
11 There is no dispute that Li’s motion to reopen, filed
12 two years after the conclusion of removal proceedings, was
13 untimely. See 8 U.S.C. § 1229a(c)(7)(C)(i) (An alien
14 seeking to reopen proceedings may file a motion to reopen no
15 later than 90 days after the date on which the final
16 administrative decision was rendered); see also 8 C.F.R.
17 § 1003.2(c)(2) (same). However, the 90-day period for
18 filing a motion to reopen may be equitably tolled when the
19 motion is based on a claim of ineffective assistance of
20 counsel. See Rashid v. Mukasey, 533 F.3d 127, 130-32 (2d
21 Cir. 2008); Jin Bo Zhao v. INS, 452 F.3d 154, 159 (2d Cir.
22 2006). Equitable tolling requires a showing that “(1)
23 counsel’s conduct violated [the] constitutional right to due
2
1 process, and (2) [the applicant] ‘has exercised due
2 diligence in pursuing the case during the period [she] seeks
3 to toll.’” Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006)
4 (quoting Iavorski v. INS, 232 F.3d 124, 135 (2d Cir. 2000)).
5 To demonstrate the required due process violation, a movant
6 must allege facts sufficient to show that competent counsel
7 would have acted otherwise, and that she was prejudiced by
8 counsel’s performance. See Rabiu v. INS, 41 F.3d 879, 882
9 (2d Cir. 1994). Finally, a demonstration of prejudice
10 requires “a prima facie showing that [s]he would have been
11 eligible for the relief [sought] and that [s]he could have
12 made a strong showing in support of [her] application.” Id.13 The BIA did not abuse its discretion in finding that Li
14 failed to establish prejudice because the record does not
15 support Li’s arguments. Li’s principal argument is that,
16 had her attorney provided a Korean translator during the
17 preparation of her asylum application, and requested a
18 Korean–rather than Mandarin–translator at her hearing, there
19 would have been no inconsistency in her testimony,
20 particularly with respect to her baptism, sufficient to
21 support an adverse credibility determination. However, she
22 does not address the other inconsistencies cited in support
3
1 of the adverse credibility determination, and does not blame
2 them on counsel or counsel’s paralegal. Li claims, in
3 essence, that her testimony was true but her written
4 application, to the extent it is inconsistent with her
5 testimony, was wrong; however, there is no support in the
6 record to support this bare assertion. To the contrary, the
7 record demonstrates that: (1) she learned Mandarin in
8 school; (2) she responded appropriately to questions posed
9 to her in Mandarin during the hearing, and the record does
10 not indicate that she had difficulty understanding them; and
11 (3) she stated, at the outset of her hearing, that she
12 understood the Mandarin interpreter, and never asked for a
13 Korean translator. Accordingly, the record does not support
14 the inference that, had she been provided a Korean
15 translator, she would have been able to make a stronger
16 showing in support of her application. Cf. Rabiu, 41 F.3d
17 at 882. Because Li did not meet her burden, the BIA did not
18 abuse its discretion by denying reopening.
19 Moreover, we decline Li’s invitation to remand for the
20 BIA to consider whether to exercise its discretion to reopen
21 her asylum proceedings sua sponte. She failed to raise an
22 argument for sua sponte reopening before the agency. See
4
1 Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d
2 Cir. 2007) (reaffirming that this Court “may consider only
3 those issues that formed the basis for [the BIA’s]
4 decision”).
5 Accordingly, the petition for review is DENIED. As we
6 have completed our review, any stay of removal that the
7 Court previously granted in this petition is VACATED, and
8 any pending motion for a stay of removal in this petition is
9 DISMISSED as moot. Any pending request for oral argument in
10 this petition is DENIED in accordance with Federal Rule of
11 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
12 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
5