10-1534-ag

Qu v. Holder

BIA

A098 420 340

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

New York, on the 23rd 4 day of February, two thousand eleven.

5

6 PRESENT:

7 ROBERT A. KATZMANN,

8 BARRINGTON D. PARKER,

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges.

11 _______________________________________

12

13 JIE MIN QU, ALSO KNOWN AS JIEMIN QU 

14 ZHOU FAN, 

15 Petitioner,

16

17 v. 10-1534-ag 

18 NAC

19

20 ERIC H. HOLDER, JR., UNITED STATES ATTORNEY 

21 GENERAL,

22 Respondent.

23 _______________________________________

24

25 FOR PETITIONER: Gary J. Yerman, New York, N.Y.

26

27 FOR RESPONDENT: Tony West, Assistant Attorney

28 General; Daniel E. Goldman, Senior

29 Litigation Counsel; Matthew A.

30 Spurlock, Trial Attorney, Office of

31 Immigration Litigation, Civil

32 Division, United States Department

of Justice, Washington, D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

2 decision of the Board of Immigration Appeals (“BIA”), it is

3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

4 review is DENIED.

5 Jie Min Qu, a native and citizen of the People’s

6 Republic of China, seeks review of a March 31, 2010, order

7 of the BIA denying her motion to reopen her removal

8 proceedings. In re Jie Min Qu, No. A098 420 340 (B.I.A.

9 Mar. 31, 2010). 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 Ali v. Gonzales, 448 F.3d 515, 517

13 (2d Cir. 2006). An alien who has been ordered removed may

14 file one motion to reopen, but must do so within 90 days of

15 the final administrative decision. 8 U.S.C. §

16 1229a(c)(7)(c)(1). Here, the BIA properly denied Qu’s motion

17 to reopen as untimely and number-barred, as it was her

18 second motion to reopen and was filed more than three years

19 after her July 2006 final order of removal. See id. §

20 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). Moreover, the BIA

21 reasonably determined that Qu failed to satisfy an exception

22 to the time and number bars based either on ineffective

23 assistance of counsel or changed country conditions.
3

1 I. Ineffective Assistance of Counsel

2 Under the doctrine of equitable tolling, ineffective

3 assistance of counsel can extend the filing deadline for an

4 alien’s motion to reopen. See Cekic v. INS, 435 F.3d 167,

5 170 (2d Cir. 2006). In order to warrant equitable tolling,

6 however, the alien is required to demonstrate that she

7 exercised “due diligence” in pursuing her claims during

8 “both the period of time before the ineffective assistance

9 of counsel was or should have been discovered and the period

10 from that point until the motion to reopen is filed.” 

11 Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008). 

12 The BIA did not act arbitrarily or capriciously in

13 concluding that Qu failed to exercise due diligence because

14 she filed her second motion to reopen more than three years

15 after she reasonably should have discovered that she

16 received ineffective assistance of counsel. See Jian Hua

17 Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007). Indeed, Qu

18 concedes that she was aware of her prior counsel’s

19 fraudulent practices at the time of the IJ’s decision. 

20 Because the BIA did not abuse its discretion in finding a

21 lack of due diligence, we need not reach the merits of the

22 underlying ineffective assistance claim. See Cekic, 435

23 F.3d at 170.
4

1 II. Changed Country Conditions

2 The agency also reasonably found that Qu’s motion did

3 not qualify for the changed country conditions exception to

4 the time and numerical limitations. See 8 C.F.R.

5 § 1003.2(c)(3)(ii). The evidence Qu submitted was similar

6 to that which the BIA addressed in Matter of J-W-S-, 24 I. &

7 N. Dec. 185 (B.I.A. 2007). We have previously reviewed, and

8 found no error in, the BIA’s analysis in that case. Jian

9 Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008). 

10 Moreover, given the BIA’s explicit references to the

11 documentation submitted with the motion to reopen, a

12 reasonable fact-finder would not be compelled to conclude

13 that the BIA ignored any material evidence. See Wei Guang

14 Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006), see also Xiao

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

16 Cir. 2006) (presuming that the agency “has taken into

17 account all of the evidence before [it], unless the record

18 compellingly suggests otherwise”). 

19 Additionally, contrary to Qu’s argument, the BIA did

20 not err in giving diminished weight to both her affidavit

21 and the evidence she submitted relating to the sterilization

22 of two individuals from her home province. See Xiao Ji

23 Chen, 471 F.3d at 342 (finding that the weight afforded to
5

1 the applicant’s evidence in immigration proceedings lies

2 largely within the discretion of the agency). The BIA also

3 did not err in finding that the evidence relating to the

4 sterilization of two individuals from her home province was

5 not material because it did not detail the forced

6 sterilizations of similarly situated individuals--namely,

7 those who gave birth to two children outside of China. See

8 Jian Hui Shao, 546 F.3d at 160-61. Accordingly, because Qu

9 failed to demonstrate a material change in country

10 conditions, the BIA did not abuse its discretion in denying

11 her motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(ii). 

12 For the foregoing reasons, the petition for review is

13 DENIED. As we have completed our review, any stay of

14 removal that the Court previously granted in this petition

15 is VACATED, and any pending motion for a stay of removal in

16 this petition is DISMISSED as moot. Any pending request for

17 oral argument in this petition is DENIED in accordance with

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

19 Circuit Local Rule 34.1(b).

20 FOR THE COURT:

21 Catherine O’Hagan Wolfe, Clerk

22