Gao, Kong Zhu v. Mukasey, Michael B.

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance
with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 11, 2007
Decided December 4, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-3399
KONG ZHU GAO,
Petitioner, Petition for Review of an Order of the
Board of Immigration Appeals
v.
No. A72-929-327
MICHAEL B. MUKASEY,
Respondent.
ORDER
Gao was ordered to depart the United States in 1999, but he stayed in the
country and, more than five years later, he filed two motions to reopen the removal
proceedings, claiming that his attorney in those proceedings was ineffective. He
appeals the denial of his second motion to reopen. Because the BIA did not abuse
its discretion in denying Gao’s motion to reopen for his lack of diligence in pursuing
his motion to reopen, we deny his petition.
Gao, who is from the Fujian province in China, was seventeen in 1996 when
he entered the United States at Los Angeles’s LAX without a valid passport or U.S.
visa. He was promptly placed in removal proceedings. After his removal hearing
was continued several times, Gao’s attorney, Marian S.K. Ming, prepared and
presented to the IJ an application for asylum on Gao’s behalf. The IJ rejected it for
No. 06-3399 Page 2
lacking a table of contents but granted another continuance. At the ensuing
hearing, in April 1999, Gao again attempted to file an asylum application, but it
also was rejected, for not being filed within the one-year deadline, see 8 C.F.R.
§ 208.4(a)(2)(ii). At a subsequent hearing, Gao withdrew his application, and he
was ordered to depart the United States. He waived appeal.
Gao never departed the United States. Instead, he fathered a child in 2002
and married the child’s mother, a United States citizen, in 2004. In October 2004,
Gao’s then-attorney, Joan Xie, moved to reopen the 1999 removal proceedings to
allow Gao to adjust his status based on his marriage. The IJ denied the motion as
untimely because it had not been filed within 90 days of the final order in the
removal proceedings. Gao again did not appeal.
In June 2005 Gao, represented by Douglas Payne, filed a second motion to
reopen, claiming generally that attorney Ming had provided ineffective assistance
in the original removal proceedings. Gao asked the IJ to reopen his case so that he
could apply for asylum and adjust his status. The IJ denied the motion to reopen as
being both time- and number-barred under 8 C.F.R. § 1003.23(b), adding that the
motion was a “dilatory tactic” to avoid enforcement of the immigration laws. The
BIA dismissed his appeal, finding that the IJ properly dismissed Gao’s motion as
time- and number-barred and that Gao had not given a “good reason” to toll the
deadline.
Gao argues on appeal that the BIA should have applied equitable tolling to
save his second motion to reopen from the time-bar of 8 C.F.R. § 1003.23(b).1 He
claims that attorney Ming was ineffective during the 1999 removal proceedings
because she missed the filing deadline for his asylum application and wrongly
advised him to withdraw the application. According to Gao, his six-year delay in
seeking reopening was due to his “youth, inexperience, cultural and linguistic
difficulties, and the continuing deception of him by his former attorney.” He says
he moved “expeditiously” to reopen once he married a U.S. citizen. We review the
BIA’s denial of a motion to reopen for an abuse of discretion. Patel v. Gonzales, 442
F.3d 1011, 1015-16 (7th Cir. 2006).
1
Gao also suggests that 8 C.F.R. § 1003.23(b)’s number limitation, which
limits an alien to only one motion to reopen, should be “equitably tolled” to allow his
second motion. Though we have held that the number-bar is non-jurisdictional and
its use may be waived if not raised before the BIA, see Joshi v. Ashcroft, 389 F.3d
732, 734-35 (7th Cir. 2004), we have not yet determined whether equitable tolling
applies to the number-bar. We need not reach that question here, however, because
Gao also blew § 1003.23(b)’s 90-day time-limit and has not shown that he merits
equitable tolling of that limit.
No. 06-3399 Page 3
Under these circumstances, Gao was limited to only one motion to reopen,
and it had to be filed with 90 days of the final order he sought to reopen,
8 C.F.R. §§ 1003.2(c)(1)-(3), 1003.23(b)(1). See also 8 U.S.C. § 1229a(c)(7)(A), (C)(I)
(2006). We have held that the administrative time-limit on motions to reopen is
non-jurisdictional and subject to equitable tolling, see Ajose v. Gonzales, 408 F.3d
393, 395 (7th Cir. 2005); Pervaiz v. Gonzales, 405 F.3d 488, 490 (7th Cir. 2005).
With an untimely motion, an alien must demonstrate that his situation
“warrants equitable tolling of the time limits, and equitable tolling in turn requires
a showing of due diligence” in pursuing the motion to reopen from the time the alien
is cognizant of the “possibility” that he was injured. Patel, 442 F.3d at 1016; see
also Pervaiz, 405 F.3d at 490. Equitable tolling may be justified where an alien’s
counsel rendered ineffective assistance. Pervaiz, 405 F.3d at 490-91; see Cekic v.
I.N.S., 435 F.3d 167, 170 (2d Cir. 2006) (tolling time during which alien was
unaware of ineffective assistance); see also Iturribarria v. I.N.S., 321 F.3d 889, 898-
99 (9th Cir. 2003) (tolling time during attorney’s active concealment of ineffective
performance); Habchy v. Gonzales, 471 F.3d 858, 864-65 (8th Cir. 2006) (tolling may
be warranted if counsel misrepresents case status during statutory filing period).
But tolling is not available to an alien who waits months or years after his removal
proceedings to investigate or discover potential ineffective assistance before seeking
reopening. See Tapia-Martinez v. Gonzales, No. 05-4413, 2007 WL 627822, at *5
(6th Cir. Feb. 27, 2007) (declining to apply equitable tolling where petitioner waited
years after IJ noted deficiencies in counsel’s submission to file motion to reopen on
basis of that ineffective assistance); Iavorski v. I.N.S., 232 F.3d 124, 134 (2d Cir.
2000) (denying petition for review of denial of motion to reopen where alien was not
diligent, having waited two years after deportation hearing to investigate status of
appeal and discover attorney’s ineffective assistance); see also Roberts v. Gonzales,
422 F.3d 33, 35-37 (1st Cir. 2005) (denying petition for review of denial of motion to
reopen where alien waited six years after removal order to file motion to reopen to
allow him to adjust status to lawful permanent resident based on marriage to U.S.
citizen).
The BIA did not abuse its discretion in refusing to apply equitable tolling to
Gao’s second motion to reopen because he did not act with due diligence in pursuing
the motion. Gao says that he moved “expeditiously” to pursue a motion to reopen
after his marriage, but his status based on marriage is not relevant to the question
of whether he acted diligently in taking six years to challenge his lawyer’s
ineffectiveness. What Gao needed to show was that he moved expeditiously to
reopen his case after he knew or should have known of any possibility of problems
with his counsel’s performance in the removal proceedings. See Patel, 442 F.3d at
1016; Cekic, 435 F.3d at 170 (noting that equitable tolling does not apply unless
alien “can affirmatively demonstrate that he exercised reasonable diligence during
the time period sought to be tolled”) (emphasis added). Gao has not said when he
No. 06-3399 Page 4
learned of potential problems with Ming’s performance, but he was ordered
removed in 1999. We see no reason why he would not have been aware of his
injury—a potentially wrongful removal—as of that date. Indeed, he admits
candidly that his “confidence in [attorney Ming] had been shaken” by the close of
the 1999 proceedings. As for Gao’s claims of youthfulness and language difficulties,
he has not explained how these factors led to any delay—much less a six-year
delay—in filing a motion to reopen. See Kay v. Ashcroft, 387 F.3d 664, 671 (7th Cir.
2004) (upholding BIA’s denial of motion to reopen for asylum or withholding of
removal because alien did not show how his post traumatic stress disorder,
language barriers, or pro se status kept him from attending removal hearing).
Under these circumstances, the BIA properly found that Gao did not show that he
acted with due diligence in pursuing his motion to reopen, and its refusal to apply
equitable tolling to Gao’s claims was not an abuse of discretion. See Tapia-
Martinez, 2007 WL 627822, at *5; Iavorski, 232 F.3d at 134.
Accordingly, we DENY Gao’s petition for review.