Lin v. Sessions

16-2629 Lin v. Sessions BIA A078 863 023 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 TO 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 for 2 the Second Circuit, held at the Thurgood Marshall United States 3 Courthouse, 40 Foley Square, in the City of New York, on the 4 30th day of May, two thousand eighteen. 5 6 PRESENT: 7 ROSEMARY S. POOLER, 8 RICHARD C. WESLEY, 9 PETER W. HALL, 10 Circuit Judges. 11 _____________________________________ 12 13 TAO LIN, AKA ALEXANDER CHEN, 14 Petitioner, 15 16 v. 16-2629 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Yee Ling Poon, Deborah Niedermeyer, 24 Law Office of Yee Ling Poon, LLC, New 25 York, NY. 26 27 FOR RESPONDENT: Laura Halliday Hickein, Trial 28 Attorney, Shelley R. Goad, Assistant 29 Director, Office of Immigration 30 Litigation, for Chad A. Readler, 1 Acting Assistant Attorney General, 2 United States Department of Justice, 3 Washington, DC. 4 5 UPON DUE CONSIDERATION of this petition for review of a 6 Board of Immigration Appeals (“BIA”) decision, it is hereby 7 ORDERED, ADJUDGED, AND DECREED that the petition for review is 8 DENIED. 9 Petitioner Tao Lin, a native and citizen of the People’s 10 Republic of China, seeks review of a June 29, 2016, decision 11 of the BIA denying his motion to reopen his removal proceedings. 12 In re Tao Lin, No. A 078 863 023 (B.I.A. June 29, 2016). We 13 assume the parties’ familiarity with the underlying facts and 14 procedural history in this case. 15 We review the BIA’s denial of Lin’s motion to reopen for 16 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d 17 Cir. 2006) (per curiam). It is undisputed that Lin’s motion 18 to reopen was untimely because it was filed approximately 12 19 years after his removal order became final in 2004. See 20 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Lin 21 argues that the time limit should be tolled based on the 22 ineffective assistance of his prior counsel. 23 The BIA did not abuse its discretion in declining to 2 1 equitably toll the time for Lin to file his motion. The time 2 limit may be excused based on ineffective assistance of counsel 3 if the movant establishes (1) deficient representation; 4 (2) prejudice as a result of that deficiency; and (3) that the 5 movant exercised due diligence in moving to reopen. Rashid v. 6 Mukasey, 533 F.3d 127, 130-31 (2d Cir. 2008). Even assuming 7 that Lin’s prior counsel was ineffective, Lin was required to 8 demonstrate “due diligence” in pursuing his claim during “both 9 the period of time before the ineffective assistance of counsel 10 was or should have been discovered and the period from that point 11 until the motion to reopen [wa]s filed.” Id. at 132. 12 Lin failed to demonstrate due diligence. He did not 13 identify any action he took between 2004 and his wife’s 14 naturalization in 2014. Nor did he explain the delay between 15 that time and the filing of his motion to reopen in 2016. See 16 Jian Hua Wang v. BIA, 508 F.3d 710, 715–16 (2d Cir. 2007) (per 17 curiam) (finding insufficient diligence where four years passed 18 between removal order and motion to reopen and petitioner failed 19 to establish any action during eight months of that period). 20 Because the diligence finding was dispositive of Lin’s 21 ineffective assistance of counsel claim, we do not reach the 3 1 BIA’s alternative dispositive determination that Lin failed to 2 show prejudice. See Rashid, 533 F.3d at 131 (requiring showing 3 of diligence “no matter how egregiously ineffective counsel’s 4 assistance may have been” (quoting Cekic v. INS, 435 F.3d 167, 5 170 (2d Cir. 2006))); see also INS v. Bagamasbad, 429 U.S. 24, 6 25 (1976) (per curiam) (“As a general rule courts and agencies 7 are not required to make findings on issues the decision of which 8 is unnecessary to the results they reach.”). 9 To the extent Lin challenges the BIA’s decision not to 10 reopen sua sponte, we lack jurisdiction to consider that ruling 11 because it is “entirely discretionary.” Ali, 448 F.3d at 518. 12 For the foregoing reasons, the petition for review is 13 DENIED. As we have completed our review, any stay of removal 14 that the Court previously granted in this petition is VACATED, 15 and any pending motion for a stay of removal in this petition 16 is DISMISSED as moot. Any pending request for oral argument 17 in this petition is DENIED in accordance with Federal Rule of 18 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 19 34.1(b). 20 FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk 4