Xiang You Zheng v. Holder

09-0440-ag Zheng v. Holder BIA A098 776 131 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 Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 3 rd day of February, two thousand ten. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 BARRINGTON D. PARKER, 9 RICHARD C. WESLEY, 10 Circuit Judges. 11 _________________________________________ 12 13 XIANG YOU ZHENG, also known as 14 ZHENG XIANG YOU, 15 Petitioner, 16 17 v. 09-0440-ag 18 NAC 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _________________________________________ 23 24 FOR PETITIONER: Eric Zheng, New York, New York. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General; M. Jocelyn Lopez Wright, 28 Senior Litigation Counsel; Anna 29 Nelson, 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 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED, that the petition for review 4 is DENIED. 5 Petitioner Xiang You Zheng, a native and citizen of the 6 People’s Republic of China, seeks review of the January 5, 7 2009 order of the BIA, which denied his motion to reopen. 8 In re Xiang You Zheng, No. A098 776 131 (B.I.A. Jan. 5, 9 2009). We assume the parties’ familiarity with the 10 underlying facts and procedural history of the case. 11 We review the BIA’s denial of a motion to reopen for 12 abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d 13 Cir. 2005) (per curiam). Here, the BIA did not abuse its 14 discretion in denying Zheng’s untimely motion to reopen. 15 See 8 C.F.R. § 1003.2(c)(2). 16 Although ineffective assistance of counsel may provide 17 a basis for equitably tolling the filing deadline for 18 motions to reopen, Cekic v. INS, 435 F.3d 167, 170-71 (2d 19 Cir. 2006), the alien is required to demonstrate that he 20 exercised “due diligence” in pursuing his claims during 21 “both the period of time before the ineffective assistance 2 1 of counsel was or should have been discovered and the period 2 from that point until the motion to reopen is filed,” see 3 Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008). 4 The BIA reasonably found that Zheng failed to 5 demonstrate that he acted with due diligence in pursuing his 6 ineffective assistance of counsel claim between March 2007, 7 when he discovered that his appeal was dismissed by the BIA, 8 and July 2008 when he filed his motion to reopen. See Jian 9 Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007). Because 10 the BIA did not abuse its discretion in declining to 11 equitably toll the time limitation for filing Zheng’s 12 motion, we need not consider the BIA’s alternative finding 13 that he failed to demonstrate compliance with the 14 requirements set forth in Matter of Lozada, 19 I. & N. Dec. 15 637 (BIA 1988). 16 Finally, we decline to consider Zheng’s unexhausted due 17 process arguments, Lin Zhong v. U.S. Dep’t of Justice, 480 18 F.3d 104, 107 n.1, 122 (2d Cir. 2007), and lack jurisdiction 19 to consider his challenge to the BIA’s refusal to reopen his 20 proceedings sua sponte, see Ali v. Gonzales, 448 F.3d 515, 21 518 (2d Cir. 2006). 3 1 For the foregoing reasons, the petition for review is 2 DENIED. As we have completed our review, any stay of 3 removal that the Court previously granted in this petition 4 is VACATED, and any pending motion for a stay of removal in 5 this petition is DISMISSED as moot. Any pending request for 6 oral argument in this petition is DENIED in accordance with 7 Federal Rule of Appellate Procedure 34(a)(2), and Second 8 Circuit Local Rule 34.1(b). 9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, Clerk 11 12 13 4