09-2812-ag
Liu v. Holder
BIA
Balasquide, IJ
A 077 927 830
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 1 st day of June, two thousand ten.
PRESENT:
JON O. NEWMAN,
ROBERT D. SACK,
REENA RAGGI,
Circuit Judges.
______________________________________
XIU JUAN LIU,
Petitioner,
09-2812-ag
v. NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Gary J. Yerman, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General,
Civil Division; Keith I. McManus,
Senior Litigation Counsel; Sunah Lee,
Trial Attorney, Office of Immigration
Litigation, Civil Division, 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, Xiu Jian Liu, a native and citizen of the
People’s Republic of China, seeks review of a June 17, 2009,
order of the BIA affirming Immigration Judge (“IJ”) Javier
Balasquide’s December 20, 2007, denial of her motion to
reopen. In re Xiu Jian Liu, No. A 077 927 830 (B.I.A. June
17, 2009), aff’g No. A 077 927 830 (Immig. Ct. N.Y. City Dec.
20, 2007). We assume the parties’ familiarity with the
underlying facts and procedural history of the case.
The agency did not abuse its discretion in denying Liu’s
untimely motion to reopen. Ali v. Gonzales, 448 F.3d 515, 517
(2d Cir. 2006); see also 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R.
§ 1003.2(c)(2). We have previously reviewed the agency’s
consideration of evidence similar to that which Liu submitted
and have found no error in its conclusion that such evidence
is insufficient to establish either material changed country
conditions or an alien’s prima facie eligibility for relief.
See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169-72 (2d Cir.
2008); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d
Cir. 2006). Moreover, despite Liu’s argument, we are not
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compelled to conclude that the agency failed to adequately
consider the evidence she presented. See Xiao Ji Chen v. U.S.
Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006)
(holding that we “presume that [the agency] has taken into
account all of the evidence before [it], unless the record
compellingly suggests otherwise”). That determination was
alone dispositive of Liu’s motion to the extent it was based
on the birth of her two U.S. citizen children. See 8 U.S.C.
§ 1229a(c)(7)(C)(ii).
The BIA also did not abuse its discretion in finding that
Liu failed to exercise due diligence in pursuing her claim for
ineffective assistance of counsel. Liu bore the burden of
demonstrating that she acted with due diligence. See Cekic v.
INS, 435 F.3d 167, 171 (2d Cir. 2006). In her motion to
reopen, she stated that she learned of her former attorney’s
failure to notify her of her hearing date on May 16, 2002.
However, she did not file her motion to reopen until November
2007, more than five years later. See Wang v. BIA, 508 F.3d
710, 715 (2d Cir. 2007) (holding that the petitioner failed to
show due diligence when eight months elapsed between the
discovery of the ineffective assistance and the filing of a
motion to reopen); Cekic, 435 F.3d at 171-72 (holding that a
two year delay between the time petitioners learned of their
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removal order and filed a motion to reopen constituted a lack
of diligence); Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir.
2008) (holding that petitioner failed to demonstrate due
diligence when he waited fourteen months after learning of the
ineffective assistance of counsel before contacting another
attorney). Although Liu stated that she “consulted several
other lawyers,” she presented no evidence that this was so,
much less when these alleged consultations occurred.
Therefore, the agency’s finding that Liu failed to demonstrate
due diligence was not “arbitrary or capricious.” Ke Zhen
Zhao, 265 F.3d at 93; Cekic, 435 F.3d at 171.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, 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 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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