13-64

Li v. Holder 

BIA

A089 254 475

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 Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 24th 4 day of April, two thousand fourteen.

5

6 PRESENT:

7 PIERRE N. LEVAL,

8 GUIDO CALABRESI,

9 JOSÉ A. CABRANES,

10 Circuit Judges.

11 _____________________________________

12

13 HAISONG LI, AKA LI HAISONG,

14 Petitioner, 

15

16 v. 13-64

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Robert J. Adinolfi, New York, NY.

24

25 FOR RESPONDENT: Stuart F. Delerey, Assistant

26 Attorney General; John S. Hogan,

27 Senior Litigation Counsel; Robbin K.

28 Blaya, Trial Attorney, Office of

29 Immigration Litigation, United

30 States Department of Justice,

31 Washington, D.C.
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 Haisong Li, a native and citizen of the People’s

6 Republic of China, seeks review of the December 12, 2012,

7 decision of the BIA denying her motion to reopen. In re

8 Haisong Li, No. A089 254 475 (B.I.A. Dec. 12, 2012). We

9 assume the parties’ familiarity with the underlying facts

10 and procedural history in this case.

11 There is no dispute that Li’s motion to reopen, filed

12 two years after the conclusion of removal proceedings, was

13 untimely. See 8 U.S.C. § 1229a(c)(7)(C)(i) (An alien

14 seeking to reopen proceedings may file a motion to reopen no

15 later than 90 days after the date on which the final

16 administrative decision was rendered); see also 8 C.F.R.

17 § 1003.2(c)(2) (same). However, the 90-day period for

18 filing a motion to reopen may be equitably tolled when the

19 motion is based on a claim of ineffective assistance of

20 counsel. See Rashid v. Mukasey, 533 F.3d 127, 130-32 (2d

21 Cir. 2008); Jin Bo Zhao v. INS, 452 F.3d 154, 159 (2d Cir.

22 2006). Equitable tolling requires a showing that “(1)

23 counsel’s conduct violated [the] constitutional right to due

2
1 process, and (2) [the applicant] ‘has exercised due

2 diligence in pursuing the case during the period [she] seeks

3 to toll.’” Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006)

4 (quoting Iavorski v. INS, 232 F.3d 124, 135 (2d Cir. 2000)). 

5 To demonstrate the required due process violation, a movant

6 must allege facts sufficient to show that competent counsel

7 would have acted otherwise, and that she was prejudiced by

8 counsel’s performance. See Rabiu v. INS, 41 F.3d 879, 882

9 (2d Cir. 1994). Finally, a demonstration of prejudice

10 requires “a prima facie showing that [s]he would have been

11 eligible for the relief [sought] and that [s]he could have

12 made a strong showing in support of [her] application.” Id.

13 The BIA did not abuse its discretion in finding that Li

14 failed to establish prejudice because the record does not

15 support Li’s arguments. Li’s principal argument is that,

16 had her attorney provided a Korean translator during the

17 preparation of her asylum application, and requested a

18 Korean–rather than Mandarin–translator at her hearing, there

19 would have been no inconsistency in her testimony,

20 particularly with respect to her baptism, sufficient to

21 support an adverse credibility determination. However, she

22 does not address the other inconsistencies cited in support

3
1 of the adverse credibility determination, and does not blame

2 them on counsel or counsel’s paralegal. Li claims, in

3 essence, that her testimony was true but her written

4 application, to the extent it is inconsistent with her

5 testimony, was wrong; however, there is no support in the

6 record to support this bare assertion. To the contrary, the

7 record demonstrates that: (1) she learned Mandarin in

8 school; (2) she responded appropriately to questions posed

9 to her in Mandarin during the hearing, and the record does

10 not indicate that she had difficulty understanding them; and

11 (3) she stated, at the outset of her hearing, that she

12 understood the Mandarin interpreter, and never asked for a

13 Korean translator. Accordingly, the record does not support

14 the inference that, had she been provided a Korean

15 translator, she would have been able to make a stronger

16 showing in support of her application. Cf. Rabiu, 41 F.3d

17 at 882. Because Li did not meet her burden, the BIA did not

18 abuse its discretion by denying reopening.

19 Moreover, we decline Li’s invitation to remand for the

20 BIA to consider whether to exercise its discretion to reopen

21 her asylum proceedings sua sponte. She failed to raise an

22 argument for sua sponte reopening before the agency. See

4
1 Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d

2 Cir. 2007) (reaffirming that this Court “may consider only

3 those issues that formed the basis for [the BIA’s]

4 decision”).

5 Accordingly, the petition for review is DENIED. As we

6 have completed our review, any stay of removal that the

7 Court previously granted in this petition is VACATED, and

8 any pending motion for a stay of removal in this petition is

9 DISMISSED as moot. Any pending request for oral argument in

10 this petition is DENIED in accordance with Federal Rule of

11 Appellate Procedure 34(a)(2), and Second Circuit Local Rule

12 34.1(b).

13 FOR THE COURT: 

14 Catherine O’Hagan Wolfe, Clerk

5