Hui Xu v. Lynch

13-2433 Xu v. Lynch BIA A077 309 697 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 28th day of August, two thousand fifteen. 5 6 PRESENT: 7 ROSEMARY S. POOLER, 8 DEBRA ANN LIVINGSTON, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 HUI XU, 14 Petitioner, 15 16 v. 13-2433 17 NAC 18 LORETTA E. LYNCH, UNITED STATES 19 ATTORNEY GENERAL,* 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Charles Christophe, Christophe Law 24 Group, P.C, New York, New York. * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Loretta E. Lynch is automatically substituted for former Attorney General Eric H. Holder, Jr., as the Respondent in this case. 1 2 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney 3 General; Song Park, Senior 4 Litigation Counsel; Sunah Lee, Trial 5 Attorney, Office of Immigration 6 Litigation, United States Department 7 of Justice, Washington, D.C. 8 9 UPON DUE CONSIDERATION of this petition for review of a 10 Board of Immigration Appeals (“BIA”) decision, it is hereby 11 ORDERED, ADJUDGED, AND DECREED that the petition for review 12 is DENIED in part and DISMISSED in part. 13 Petitioner Hui Xu, a native and citizen of the People’s 14 Republic of China, seeks review of the May 31, 2013, 15 decision of the BIA denying his motion to reopen. In re Hui 16 Xu, No. A077 309 697 (B.I.A. May 31, 2013). We assume the 17 parties’ familiarity with the underlying facts and 18 procedural history of the case. 19 The BIA’s denial of Xu’s motion to reopen was not an 20 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 21 (2d Cir. 2006) (per curiam). Absent certain enumerated 22 circumstances which are not present here, an alien may 23 generally move to reopen no later than 90 days after the 24 date of the final administrative decision. See 8 U.S.C. 25 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). There is no 26 dispute that Xu’s 2013 motion was untimely because his final 2 1 administrative order was issued in 2003. 8 U.S.C. 2 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). In some 3 instances, however, the agency may equitably toll the 90 4 days if an alien demonstrates ineffective assistance of 5 counsel and that he exercised due diligence in pursuing his 6 claims during “both the period of time before the 7 ineffective assistance of counsel was or should have been 8 discovered and the period from that point until the motion 9 to reopen [wa]s filed.” Rashid v. Mukasey, 533 F.3d 127, 10 132 (2d Cir. 2008). 11 The BIA reasonably found that Xu’s ten-year delay in 12 raising ineffective assistance, a claim Xu admits was 13 apparent at the time of his 2002 hearing, did not reflect 14 due diligence. See Jian Hua Wang v. B.I.A., 508 F.3d 710, 15 715 (2d Cir. 2007) (per curiam) (citing several cases 16 finding that a petitioner has failed to demonstrate due 17 diligence where he or she waited two years or longer to take 18 steps to reopen a proceeding). Despite Xu’s assertion that 19 he lacked understanding of English and U.S. laws, he did not 20 explain why he did not simply seek new counsel to articulate 21 the claim for him. The BIA therefore did not err in 22 declining to toll the filing deadline, and consequently did 3 1 not abuse its discretion in denying Xu’s motion to reopen as 2 untimely. See Rashid, 533 F.3d at 131-32; Ali, 448 F.3d at 3 517. 4 To the extent that Xu challenges the BIA’s denial of 5 sua sponte reopening, we dismiss the petition for review 6 because we lack jurisdiction to consider the discretionary 7 determination that Xu did not demonstrate exceptional 8 circumstances. See Ali, 448 F.3d at 518. 9 For the foregoing reasons, the petition for review is 10 DENIED in part and DISMISSED in part. As we have completed 11 our review, any stay of removal that the Court previously 12 granted in this petition is VACATED, and any pending motion 13 for a stay of removal in this petition is DISMISSED as moot. 14 Any pending request for oral argument in this petition is 15 DENIED in accordance with Federal Rule of Appellate 16 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). 17 FOR THE COURT: 18 Catherine O’Hagan Wolfe, Clerk 19 20 21 4