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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 23 rd** **day of February, two thousand eleven.** 4 5 **PRESENT:** 6 **ROBERT A. KATZMANN,** 7 **BARRINGTON D. PARKER,** 8 **DEBRA ANN LIVINGSTON,** 9 Circuit Judges**.** 10

**_______________________________________** 11 12 **JIE MIN QU, ALSO KNOWN AS JIEMIN QU** 13 **ZHOU FAN,** 14 Petitioner**,** 15 16 **v. 10-1534-ag** 17 **NAC** 18 19 **ERIC H. HOLDER, JR., UNITED STATES ATTORNEY** 20 **GENERAL,** 21 Respondent **.** 22

**_______________________________________** 23 24 **FOR PETITIONER: Gary J. Yerman, New York, N.Y.** 25 26 **FOR RESPONDENT: Tony West, Assistant Attorney** 27 **General; Daniel E. Goldman, Senior** 28 **Litigation Counsel; Matthew A.** 29 **Spurlock, Trial Attorney, Office of** 30 **Immigration Litigation, Civil** 31 **Division, United States Department** 32 **of Justice, Washington, D.C.**2 UPON DUE CONSIDERATION of this petition for review of a 1 decision of the Board of Immigration Appeals (“BIA”), it is 2 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for 3 review is DENIED. 4 Jie Min Qu, a native and citizen of the People’s 5 Republic of China, seeks review of a March 31, 2010, order 6 of the BIA denying her motion to reopen her removal 7 proceedings. In re Jie Min Qu , No. A098 420 340 (B.I.A. 8 Mar. 31, 2010). We assume the parties’ familiarity with the 9 underlying facts and procedural history of the case. 10 We review the BIA’s denial of a motion to reopen for 11 abuse of discretion. See Ali v. Gonzales , 448 F.3d 515, 517 12 (2d Cir. 2006). An alien who has been ordered removed may 13 file one motion to reopen, but must do so within 90 days of 14 the final administrative decision. 8 U.S.C. § 15 1229a(c)(7)(c)(1). Here, the BIA properly denied Qu’s motion 16 to reopen as untimely and number-barred, as it was her 17 second motion to reopen and was filed more than three years 18 after her July 2006 final order of removal. See id.§ 19 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). Moreover, the BIA 20 reasonably determined that Qu failed to satisfy an exception 21 to the time and number bars based either on ineffective 22 assistance of counsel or changed country conditions. 233 **I. Ineffective Assistance of Counsel** 1 Under the doctrine of equitable tolling, ineffective 2 assistance of counsel can extend the filing deadline for an 3 alien’s motion to reopen. See Cekic v. INS , 435 F.3d 167, 4 170 (2d Cir. 2006). In order to warrant equitable tolling, 5 however, the alien is required to demonstrate that she 6 exercised “due diligence” in pursuing her claims during 7 “both the period of time before the ineffective assistance 8 of counsel was or should have been discovered and the period 9 from that point until the motion to reopen is filed.” 10 Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008). 11 The BIA did not act arbitrarily or capriciously in 12 concluding that Qu failed to exercise due diligence because 13 she filed her second motion to reopen more than three years 14 after she reasonably should have discovered that she 15 received ineffective assistance of counsel. See Jian Hua 16 Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007)

.Indeed, Qu 17 concedes that she was aware of her prior counsel’s 18 fraudulent practices at the time of the IJ’s decision. 19 Because the BIA did not abuse its discretion in finding a 20 lack of due diligence, we need not reach the merits of the 21 underlying ineffective assistance claim. See Cekic , 435 22 F.3d at 170. 234 **II. Changed Country Conditions** 1 The agency also reasonably found that Qu’s motion did 2 not qualify for the changed country conditions exception to 3 the time and numerical limitations. See8 C.F.R. 4 § 1003.2(c)(3)(ii). The evidence Qu submitted was similar 5 to that which the BIA addressed in Matter of J-W-S-, 24 I. & 6 N. Dec. 185 (B.I.A. 2007 ) . We have previously reviewed, and 7 found no error in, the BIA’s analysis in that case. Jian 8 Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008). 9 Moreover, given the BIA’s explicit references to the 10 documentation submitted with the motion to reopen, a 11 reasonable fact-finder would not be compelled to conclude 12 that the BIA ignored any material evidence. See Wei Guang 13 Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006), see also Xiao 14 Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 315, 337 n.17 (2d 15 Cir. 2006) (presuming that the agency “has taken into 16 account all of the evidence before [it], unless the record 17 compellingly suggests otherwise”). 18 Additionally, contrary to Qu’s argument, the BIA did 19 not err in giving diminished weight to both her affidavit 20 and the evidence she submitted relating to the sterilization 21 of two individuals from her home province. See Xiao Ji 22 Chen , 471 F.3d at 342 (finding that the weight afforded to 235 the applicant’s evidence in immigration proceedings lies 1 largely within the discretion of the agency). The BIA also 2 did not err in finding that the evidence relating to the 3 sterilization of two individuals from her home province was 4

not material because it did not detail the forced 5 sterilizations of similarly situated individuals--namely, 6 those who gave birth to two children outside of China. See 7 Jian Hui Shao , 546 F.3d at 160-61. Accordingly, because Qu 8 failed to demonstrate a material change in country 9 conditions, the BIA did not abuse its discretion in denying 10 her motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(ii). 11 For the foregoing reasons, the petition for review is 12 DENIED. As we have completed our review, any stay of 13 removal that the Court previously granted in this petition 14 is VACATED, and any pending motion for a stay of removal in 15 this petition is DISMISSED as moot. Any pending request for 16 oral argument in this petition is DENIED in accordance with 17 Federal Rule of Appellate Procedure 34(a)(2), and Second 18 Circuit Local Rule 34.1(b). 19
FOR THE COURT: 20 Catherine O’Hagan Wolfe, Clerk 21 22