Xiu Fang Zheng v. Holder

11-2657-ag
Zheng v. Holder
BIA
Straus, IJ
A078 016 055
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 11th day of April, two thousand twelve.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSEPH M. McLAUGHLIN,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11
12 _____________________________________
13
14 XIU FANG ZHENG,
15 Petitioner,
16
17 v. 11-2657-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22
23 _____________________________________
24
25 FOR PETITIONER: Tina Howe, New York, New York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Richard M. Evans, Assistant
29 Director; Virginia Lum, Attorney,
30 Office of Immigration Litigation,
 1 Civil Division, United States
2 Department of Justice, Washington,
3 D.C.
4 UPON DUE CONSIDERATION of this petition for review of a

5 Board of Immigration Appeals (“BIA”) decision, it is hereby

6 ORDERED, ADJUDGED, AND DECREED that the petition for review

7 is DENIED.

8 Petitioner Xiu Fang Zheng, a native and citizen of the

9 People’s Republic of China, seeks review of a June 3, 2011

10 order of the BIA affirming the July 19, 2010 order of an

11 Immigration Judge (“IJ”), denying her motion to reopen her

12 removal proceedings. In re Xiu Fang Zheng, No. A078 016 055

13 (B.I.A. June 3, 2011), aff’g No. A078 016 055 (Immig. Ct.

14 N.Y. City July 19, 2010). We assume the parties’

15 familiarity with the underlying facts and procedural history

16 in this case.

17 We have reviewed the IJ’s decision as the final agency

18 determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146

19 (2d Cir. 2008). We review the agency’s denial of a motion to

20 reopen proceedings in order to rescind an in absentia

21 removal order or to apply for relief based on new evidence

22 for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233

23 (2d Cir. 2005); Alrefae v. Chertoff, 471 F.3d 353, 357 (2d

24 Cir. 2006).

2
 1 There is no dispute that Zheng’s May 2010 motion to

2 reopen was untimely under either the 90-day period

3 applicable to motions to reopen or the 180-day period

4 applicable to motions to rescind because she filed it five

5 years after she was ordered removed in absentia. See

6 8 U.S.C. §§ 1229a, (b)(5)(C)(i), (c)(7)(C). However, time

7 limitations on motions to reopen may be equitably tolled to

8 accommodate claims of ineffective assistance of counsel,

9 provided that, among other things, the movant has exercised

10 “due diligence” in vindicating her rights. See Cekic v.

11 INS, 435 F.3d 167, 170 (2d Cir. 2006). An alien is required

12 to exercise due diligence in pursuing her case both before

13 and after she has or should have discovered the alleged

14 ineffective assistance. See Rashid v. Mukasey, 533 F.3d

15 127, 132 (2d Cir. 2008).

16 Here, the agency denied Zheng’s motion to reopen

17 because it determined that she had not exercised due

18 diligence in pursuing her claims. Specifically, the IJ

19 concluded that Zheng had taken “no action about her case for

20 five years” after she was ordered removed in absentia.

21 Zheng argues that her statement in her affidavit – that she

22 sought the assistance of a lawyer, but that she was advised

3
 1 it would be difficult to reopen her proceedings – is

2 sufficient to demonstrate due diligence. Although the IJ

3 did not specifically discuss Zheng’s affidavit, we “presume

4 that the IJ has taken into account all of the evidence,

5 unless the record compellingly suggests otherwise.” Xiao Ji

6 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337, n.17 (2d

7 Cir. 2006). Zheng points to nothing in the record

8 suggesting that the IJ did not take her statement into

9 account. Further, given that it was Zheng’s burden to

10 establish that she had exercised due diligence in pursuing

11 her claims, see Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d

12 Cir. 2007), her ambiguous statement that she had

13 unsuccessfully sought the assistance of attorneys, without

14 any further detail, is not sufficient. See Rashid, 533 F.3d

15 at 133 (holding that due diligence required petitioner to

16 “follow up with his attorney . . . and if he received no

17 response, to obtain new counsel, seek relief from the agency

18 on his own, or take other affirmative action”). Accordingly,

19 the agency did not abuse its discretion in denying Zheng’s

20 motion to reopen her immigration proceedings.

21 We decline to consider Zheng’s argument that the agency

22 erred in failing to construe her motion to reopen as one

4
 1 seeking to reopen on the basis of new evidence showing

2 changed conditions for Falun Gong practitioners in China,

3 rather than one seeking to rescind her in absentia removal

4 order based on ineffective assistance of counsel, as Zheng

5 did not raise this argument before the BIA. See Foster v.

6 INS, 376 F.3d 75, 78 (2d Cir. 2004); see also Lin Zhong v.

7 U.S. Dep’t of Justice, 480 F.3d 104, 107 n.1, 119-20 (2d

8 Cir. 2007).

9 For the foregoing reasons, the petition for review is

10 DENIED. Any pending motion for a stay of removal in this

11 petition is DISMISSED as moot. Any pending request for oral

12 argument in this petition is DENIED in accordance with

13 Federal Rule of Appellate Procedure 34(a)(2), and Second

14 Circuit Local Rule 34.1(b).

15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
18

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