Ni v. Garland

21-6421
Ni v. Garland
BIA
A099 458 450
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 for the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 17th day of October, two thousand
4 twenty-three.
5
6 PRESENT:
7 SUSAN L. CARNEY,
8 WILLIAM J. NARDINI,
9 STEVEN J. MENASHI,
10 Circuit Judges.
11 _____________________________________
12
13 XIAO WEI NI,
14 Petitioner,
15
16 v. 21-6421
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
1 FOR PETITIONER: Zhou Wang, Esq., New York, NY.
2
3 FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant
4 Attorney General; Shelley R. Goad, Assistant
5 Director; Jennifer A. Singer, Trial Attorney,
6 Office of Immigration Litigation, United
7 States Department of Justice, Washington,
8 DC.
9
10 UPON DUE CONSIDERATION of this petition for review of a Board of
11 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
12 DECREED that the petition for review is DENIED.
13 Petitioner Xiao Wei Ni, a native and citizen of the People’s Republic of
14 China, seeks review of a July 7, 2021, decision of the BIA denying his motion to
15 reopen his removal proceedings. In re Xiao Wei Ni, No. A099 458 450 (B.I.A. July
16 7, 2021). We assume the parties’ familiarity with the underlying facts and
17 procedural history.
18 We review the BIA’s denial of a motion to reopen for abuse of discretion and
19 review factual findings for substantial evidence. See Jian Hui Shao v. Mukasey, 546
20 F.3d 138, 168–69 (2d Cir. 2008). It is undisputed that Ni’s 2019 motion to reopen
21 was untimely because he filed it almost two years after his removal order became
22 final in 2017. See 8 U.S.C. § 1229a(c)(7)(C)(i) (providing 90-day deadline for
2
1 motions to reopen); 8 C.F.R. § 1003.2(c)(2) (same).
2 Ni argued that his former counsel in removal proceedings was ineffective
3 by failing to call two witnesses to testify and that his ineffective assistance claim
4 should excuse the untimely filing of his motion. Ineffective assistance may
5 provide a basis for equitable tolling of the filing period. See Cekic v. INS, 435 F.3d
6 167, 170 (2d Cir. 2006). In addition to demonstrating “that competent counsel
7 would have acted otherwise, and . . . that he was prejudiced by his counsel’s
8 performance,” Rabiu v. INS, 41 F.3d 879, 882–83 (2d Cir. 1994) (quotation marks
9 and citations omitted), Ni had to establish that he exercised “due diligence” in
10 pursuing his claim during “both the period of time before the ineffective assistance
11 of counsel was or should have been discovered and the period from that point
12 until the motion to reopen is filed,” Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir.
13 2008); see also Cekic, 435 F.3d at 170 (requiring alien to demonstrate due diligence
14 independent from demonstrating ineffective assistance of former counsel).
15 The BIA did not err in declining to equitably toll the period for Ni to file his
16 motion because Ni failed to exercise due diligence during the almost two years
17 that passed between the BIA’s decision affirming his removal order and his motion
3
1 to reopen. See Rashid, 533 F.3d at 132. In his brief, Ni argues that he waited for
2 the BIA to decide his appeal before filing his motion to reopen in January 2019, but
3 he does not explain what actions he took after the BIA’s decision in March 2017.
4 Before the BIA, he argued that he acted diligently between the BIA’s 2017 decision
5 and his 2019 motion by complying with the procedural requirements for pursuing
6 an ineffective assistance of counsel claim; however, his evidence supports the
7 BIA’s conclusion that he was not diligent because it shows that he complied with
8 those requirements (by preparing an affidavit, informing former counsel of his
9 claim, and filing a judicial complaint) before September 2017, and then waited
10 another year and four months to file his motion. See Jian Hua Wang v. BIA, 508
11 F.3d 710, 715 (2d Cir. 2007) (holding that petitioner failed to establish due diligence
12 where there was a five-month delay between compliance with the procedural
13 requirements and filing the motion). Because Ni did not allege taking any action
14 in his case during that latter period, which far exceeded the 90-day deadline
15 usually afforded movants to file for reopening, the BIA did not abuse its discretion
16 in concluding that he did not act diligently in pursuing reopening based on
17 ineffective assistance. Id. (providing that “petitioner bears the burden of proving
4
1 that he has exercised due diligence in the period between discovering the
2 ineffectiveness of his representation and filing the motion”).
3 Ni’s failure to act diligently was dispositive of his motion to reopen based
4 on ineffective assistance, and thus we do not consider the agency’s alternative
5 dispositive finding that he failed to establish that he was prejudiced by counsel’s
6 representation. See Cekic, 435 F.3d at 170; see also INS v. Bagamasbad, 429 U.S. 24,
7 25 (1976) (“As a general rule courts and agencies are not required to make findings
8 on issues the decision of which is unnecessary to the results they reach.”).
9 For the foregoing reasons, the petition for review is DENIED. All pending
10 motions and applications are DENIED and stays VACATED.
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe,
13 Clerk of Court
5