11-92
Lu v. Holder
BIA
A078 198 952
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 9th day of January, two thousand fourteen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 ROSEMARY S. POOLER,
9 ROBERT D. SACK,
10 Circuit Judges.
11 _____________________________________
12
13 QIGUANG LU, AKA QI GUANG LU,
14 Petitioner,
15
16 v. 11-92
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Lee Ratner, Law Offices of Michael
24 Brown, New York, N.Y.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Susan K. Houser, Senior
28 Litigation Counsel; Christina J.
29 Martin, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
4 review is DENIED.
5 Qiguang Lu, a native and citizen of the People’s
6 Republic of China, seeks review of a December 29, 2010,
7 decision of the BIA denying his motion to reopen. In re
8 Qiguang Lu, No. A078 198 952 (B.I.A. Dec. 29, 2010). We
9 assume the parties’ familiarity with the underlying facts
10 and procedural history of this case.
11 The applicable standards of review are well-
12 established. See Jian Hui Shao v. Mukasey, 546 F.3d 138,
13 168-69 (2d Cir. 2008). An alien may file only one motion to
14 reopen within 90 days of the agency’s final administrative
15 decision. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.
16 § 1003.2(c)(2). Lu’s motion to reopen was indisputably
17 untimely and number-barred because it was filed more than
18 eight years after the agency’s final order of removal and it
19 was his third motion to reopen.
20 There are no time and numerical limitations for filing
21 a motion to reopen if it is “based on changed country
22 conditions arising in the country of nationality or the
23 country to which removal has been ordered, if such evidence
2
1 is material and was not available and would not have been
2 discovered or presented at the previous proceeding.”
3 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).
4 As the BIA found, Lu’s activities in the United States did
5 not constitute changed conditions in China. See Li Yong
6 Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d
7 Cir. 2005). Additionally, the BIA reasonably concluded that
8 Lu failed to demonstrate material changed conditions in
9 China since the time of his 2000 proceedings before the
10 immigration judge because the evidence he submitted
11 demonstrated that Falun Gong practitioners have been
12 continuously mistreated in China since the Chinese
13 government began its crackdown against that group in 1999.
14 See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.
15 § 1003.2(c)(3)(ii). Moreover, the BIA reasonably relied on
16 the underlying adverse credibility determination to decline
17 to credit Lu’s individualized evidence that government
18 officials in China had discovered his activities in the
19 United States. See Qin Wen Zheng v. Gonzales, 500 F.3d 143,
20 146-49 (2d Cir. 2007). Accordingly, the BIA did not err in
21 finding that Lu failed to demonstrate material changed
22 country conditions excusing the untimely and number-barred
23 filing of his motion.
3
1 The BIA also did not err in declining to equitably toll
2 the time period for filing the motion to reopen based on his
3 ineffective assistance of counsel. In order to warrant
4 equitable tolling, even assuming that a movant demonstrated
5 that prior counsel was ineffective, an alien is required to
6 demonstrate “due diligence” in pursuing his claim during
7 “both the period of time before the ineffective assistance
8 of counsel was or should have been discovered and the period
9 from that point until the motion to reopen is filed.”
10 Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008); see
11 also Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006). The
12 BIA did not err in finding that Lu failed to demonstrate
13 that he exercised due diligence because, as Lu admits in his
14 brief, he did not pursue his ineffective assistance of
15 counsel claim from 2003 to 2010. See Jian Hua Wang v. BIA,
16 508 F.3d 710, 715 (2d Cir. 2007).
17 Finally, the BIA did not err in noting that Lu was not
18 eligible for an exception to the procedural limitations
19 applicable to his motion to reopen based on his purported
20 eligibility to adjust status. See 8 U.S.C.
21 § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3); see also Matter
22 of Yauri, 25 I. & N. Dec. 103, 105 (B.I.A. 2009).
4
1 For the foregoing reasons, the petition for review is
2 DENIED. The pending motion for a stay of removal in this
3 petition is DISMISSED as moot.
4
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
5