09 -18 71 -ag

Liu v. Holder BIA A 078 317 496 

### UNITED STATES COURT OF AP PEALS FOR THE SE COND CIRCU IT 

# SUM MARY 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 1 0 with the underlying facts and procedural history of the 1 1 case. 1 2 We review the BIA’s denial of a motion to reopen for 1 3 abuse of discretion. Ali v. Gonzales , 448 F.3d 515, 517 (2d 1 4 Cir. 2006). We find that the BIA did not err in denying 1 5 Liu’s untimely motion to reopen. An alien may only file one 1 6 motion to reopen and must do so within 90 days of the 1 7 agency’s final administrative decision. 8 C.F.R. 1 8 § 1003.2(c)(2). However, the deadline may be equitably 1 9 tolled to accommodate claims of ineffective assistance of 2 0 counsel, so long as the movant has exercised “due diligence” 2 1 in vindicating his or her rights. See Cekic v. INS , 435 2 2 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 1 0 to exercise due diligence precluded him from succeeding on 1 1 his ineffective assistance of counsel claim. See id. at 1 2 170. 1 3 Liu argues that he could not have been aware of his 1 4 former attorneys’ failure to properly pursue a motion to 1 5 reopen based on ineffective assistance of counsel under 16 Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), before 1 7 2008. But the BIA’s December 2004 decision affirming the 1 8 IJ’s denial of Liu’s first motion to reopen stated that Liu 1 9 “has not presented a claim of ineffective assistance of 2 0 counsel that is compliant with our decision in Matter of 21 Lozada .” The BIA mailed a copy of its decision to Mr. Yu in 2 2 December 2004, and therefore it reasonably found that Liu4 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 1 0 Cir. 2008). 1 1 For the foregoing reasons, the petition for review is 1 2 DENIED. 1 3 FOR THE COURT: 1 4 Catherine O’Hagan Wolfe, Clerk 15 16 17