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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 24 th** **day of April, two thousand fourteen.** 4 5 **PRESENT:** 6 **PIERRE N. LEVAL,** 7 **GUIDO CALABRESI,** 8 **JOSÉ A. CABRANES,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **HAISONG LI, AKA LI HAISONG,** 13 Petitioner**,** 14 15 **v. 13-64** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_____________________________________** 21 22 **FOR PETITIONER: Robert J. Adinolfi, New York, NY.** 23 24 **FOR RESPONDENT: Stuart F. Delerey, Assistant** 25 **Attorney General; John S. Hogan,** 26 **Senior Litigation Counsel; Robbin K.** 27 **Blaya, Trial Attorney, Office of** 28 **Immigration Litigation, United** 29 **States Department of Justice,** 30 **Washington, D.C.** 31UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Haisong Li, a native and citizen of the People’s 5 Republic of China, seeks review of the December 12, 2012, 6 decision of the BIA denying her motion to reopen. In re 7 Haisong Li , No. A089 254 475 (B.I.A. Dec. 12, 2012). We 8 assume the parties’ familiarity with the underlying facts 9 and procedural history in this case. 10 There is no dispute that Li’s motion to reopen, filed 11 two years after the conclusion of removal proceedings, was 12 untimely. See8 U.S.C. § 1229a(c)(7)(C)(i) (An alien 13 seeking to reopen proceedings may file a motion to reopen no 14 later than 90 days after the date on which the final 15 administrative decision was rendered); see also 8 C.F.R. 16 § 1003.2(c)(2) (same). However, the 90-day period for 17 filing a motion to reopen may be equitably tolled when the 18 motion is based on a claim of ineffective assistance of 19 counsel. See Rashid v. Mukasey, 533 F.3d 127, 130-32 (2d 20 Cir. 2008); Jin Bo Zhao v. INS, 452 F.3d 154, 159 (2d Cir. 21 2006). Equitable tolling requires a showing that “(1) 22 counsel’s conduct violated [the] constitutional right to due 23

2process, and (2) [the applicant] ‘has exercised due 1 diligence in pursuing the case during the period [she] seeks 2 to toll.’” Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006) 3 (quoting Iavorski v. INS, 232 F.3d 124, 135 (2d Cir. 2000)). 4 To demonstrate the required due process violation, a movant 5 must allege facts sufficient to show that competent counsel 6 would have acted otherwise, and that she was prejudiced by 7 counsel’s performance. See Rabiu v. INS, 41 F.3d 879, 882 8 (2d Cir. 1994). Finally, a demonstration of prejudice 9 requires “a prima facie showing that [s]he would have been 10 eligible for the relief [sought] and that [s]he could have 11 made a strong showing in support of [her] application.” Id. 12 The BIA did not abuse its discretion in finding that Li 13 failed to establish prejudice because the record does not 14 support Li’s arguments. Li’s principal argument is that, 15 had her attorney provided a Korean translator during the 16 preparation of her asylum application, and requested a 17 Korean–rather than Mandarin–translator at her hearing, there 18 would have been no inconsistency in her testimony, 19 particularly with respect to her baptism, sufficient to 20 support an adverse credibility determination. However, she 21 does not address the other inconsistencies cited in support 22

3of the adverse credibility determination, and does not blame 1 them on counsel or counsel’s paralegal. Li claims, in 2 essence, that her testimony was true but her written 3 application, to the extent it is inconsistent with her 4 testimony, was wrong; however, there is no support in the 5 record to support this bare assertion. To the contrary, the 6 record demonstrates that: (1) she learned Mandarin in 7 school; (2) she responded appropriately to questions posed 8 to her in Mandarin during the hearing, and the record does 9 not indicate that she had difficulty understanding them; and 10 (3) she stated, at the outset of her hearing, that she 11 understood the Mandarin interpreter, and never asked for a 12 Korean translator. Accordingly, the record does not support 13 the inference that, had she been provided a Korean 14 translator, she would have been able to make a stronger 15 showing in support of her application. Cf. Rabiu, 41 F.3d 16 at 882. Because Li did not meet her burden, the BIA did not 17 abuse its discretion by denying reopening. 18 Moreover, we decline Li’s invitation to remand for the 19 BIA to consider whether to exercise its discretion to reopen 20 her asylum proceedings sua sponte. She failed to raise an 21 argument for sua sponte reopening before the agency. See 22

4Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d 1 Cir. 2007) (reaffirming that this Court “may consider only 2 those issues that formed the basis for [the BIA’s] 3 decision”). 4 Accordingly, the petition for review is DENIED. As we 5 have completed our review, any stay of removal that the 6 Court previously granted in this petition is VACATED, and 7 any pending motion for a stay of removal in this petition is 8 DISMISSED as moot. Any pending request for oral argument in 9 this petition is DENIED in accordance with Federal Rule of 10 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 11 34.1(b). 12

FOR THE COURT: 13 Catherine O’Hagan Wolfe, Clerk 14

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