09-1871-ag

Liu v. Holder

BIA

A 078 317 496

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 11 day of February, two thousand ten. th

5

6 PRESENT:

7 ROBERT D. SACK,

8 REENA RAGGI,

9 RICHARD C. WESLEY,

10 Circuit Judges. 

11 ______________________________________

12

13 JIN YAO LIU, a.k.a. JINYAO LIU,

14 Petitioner, 

15 09-1871-ag

16 v. NAC

17

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent.

21 ______________________________________

22

23 FOR PETITIONER: Joan Xie, New York, NY.

24

25 FOR RESPONDENT: Tony West, Assistant Attorney

26 General, Civil Division; Daniel E.

27 Goldman, Senior Litigation Counsel;

28 Matthew A. Spurlock, Trial Attorney,

29 Office of Immigration Litigation,

30 Civil Division, United States

31 Department of Justice, Washington,

32 D.C.
2

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, Jin Yao Liu, a native and citizen of the

6 People’s Republic of China, seeks review of an April 20,

7 2009 order of the BIA denying his motion to reopen his

8 removal proceedings. In re Jin Yao Liu, No. A 078 317 496

9 (B.I.A. Apr. 20, 2009). We assume the parties’ familiarity

10 with the underlying facts and procedural history of the

11 case.

12 We review the BIA’s denial of a motion to reopen for

13 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d

14 Cir. 2006). We find that the BIA did not err in denying

15 Liu’s untimely motion to reopen. An alien may only file one

16 motion to reopen and must do so within 90 days of the

17 agency’s final administrative decision. 8 C.F.R.

18 § 1003.2(c)(2). However, the deadline may be equitably

19 tolled to accommodate claims of ineffective assistance of

20 counsel, so long as the movant has exercised “due diligence”

21 in vindicating his or her rights. See Cekic v. INS, 435

22 F.3d 167, 171 (2d Cir. 2006).
3

1 Liu asserts that he was prejudiced by the failure of

2 his former attorney to appear at his hearing. However, the

3 BIA agreed that Liu showed prejudice, but found that he

4 failed to exercise due diligence in pursuing his claim. See

5 Cekic, 435 F.3d at 170-71. As the BIA found, Liu filed his

6 second motion to reopen nearly four years after its prior

7 decision and “did not take any apparent action until

8 sometime in 2008.” Therefore, despite Liu’s showing of

9 prejudice, the BIA did not err in finding that his failure

10 to exercise due diligence precluded him from succeeding on

11 his ineffective assistance of counsel claim. See id. at

12 170. 

13 Liu argues that he could not have been aware of his

14 former attorneys’ failure to properly pursue a motion to

15 reopen based on ineffective assistance of counsel under

16 Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), before

17 2008. But the BIA’s December 2004 decision affirming the

18 IJ’s denial of Liu’s first motion to reopen stated that Liu

19 “has not presented a claim of ineffective assistance of

20 counsel that is compliant with our decision in Matter of

21 Lozada.” The BIA mailed a copy of its decision to Mr. Yu in

22 December 2004, and therefore it reasonably found that Liu
4

1 should have discovered the ineffective assistance of his

2 prior attorneys “a short time after the Board’s December 9,

3 2004” decision. See Ping Chen v. U.S. Attorney Gen., 502

4 F.3d 73, 77-78 (2d Cir. 2007). The BIA therefore did not

5 abuse its discretion in finding that Liu failed to exercise

6 due diligence in pursuing his claim where he waited four

7 years to file his motion to reopen and provided no evidence

8 indicating that he took any action during the period he

9 sought to toll. Rashid v. Mukasey, 533 F.3d 127, 132 (2d

10 Cir. 2008).

11 For the foregoing reasons, the petition for review is

12 DENIED. 

13 FOR THE COURT: 

14 Catherine O’Hagan Wolfe, Clerk

15

16

17