13‐3003
Zhang v. Holder
BIA
A200 819 223
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 Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 24th day of November, two thousand
fourteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
REENA RAGGI,
RICHARD C. WESLEY,
Circuit Judges.
_____________________________________
MING‐ZHU ZHANG,
Petitioner,
v. 13‐3003
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
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Respondent.
_____________________________________
FOR PETITIONER: Fuhao Yang, New York, NY.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney General;
David V. Bernal, Assistant Director, Office of
Immigration Litigation; Lindsay W. Zimliki,
Attorney, Office of Immigration Litigation, 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 Ming‐Zhu Zhang, a native and citizen of the People’s Republic of
China, seeks review of a July 12, 2013 decision of the BIA denying her motion to
reopen. In re Ming‐Zhu Zhang, No. A200 819 223 (B.I.A. Jul. 12, 2013). We assume
the parties’ familiarity with the underlying facts and procedural history in this
case.
We review the denial of a motion to reopen for abuse of discretion. Ali v.
Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (per curiam). It is undisputed that
Zhang’s motion to reopen was untimely because she filed it in May 2013, eight
months after her order of removal became final. 8 U.S.C. § 1229a(c)(7)(C)(i)
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(setting 90‐day deadline for filing to reopen); 8 C.F.R. § 1003.2(c)(2) (same). That
time limit may be excused by demonstrating that counsel was ineffective. Iavorski
v. INS, 232 F.3d 124, 126‐29 (2d Cir. 2000). However, to establish ineffective
assistance so as to warrant equitable tolling, the movant must show that
“competent counsel would have acted otherwise,” and that “[s]he was prejudiced
by . . . counsel’s performance.” Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 1994)
(internal quotation marks omitted).
As the BIA determined, the new evidence Zhang provided with her motion
did not show that any errors committed by counsel undermined the agency’s
adverse credibility determination. The letters may show her ability to corroborate
her allegations of past persecution, but do not resolve the problems with her
demeanor or her inconsistent testimony. Further, she provided no
documentation of her alleged marriage to a United States citizen, and her
application for adjustment on that basis remains pending. Accordingly, as Zhang
did not meet her burden to show prejudice, the BIA did not abuse its discretion in
denying her motion to reopen as untimely.
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Additionally, we typically lack jurisdiction to review the BIA’s refusal to
exercise its authority to reopen proceedings sua sponte. See Ali, 448 F.3d at 518.
There is a limited exception where the agency bases its denial on a misperception
of the law. See Mahmood v. Holder, 570 F.3d 466, 469‐71 (2d Cir. 2009). Here,
however, jurisdiction is lacking. The agency explicitly stated that it was denying
Zhang’s motion as a matter of discretion and did not make any determination
regarding Zhang’s eligibility for relief.
For the foregoing reasons, the petition for review is DENIED. 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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