11-2654-ag

Chen v. Holder

BIA

LaForest, IJ

A070 906 815

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

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of New

York, on the 24th day of September, two thousand twelve.

PRESENT:

DENNIS JACOBS,

Chief Judge,

SUSAN L. CARNEY,

CHRISTOPHER F. DRONEY,

Circuit Judges.

_____________________________________

HE SHENG CHEN,

Petitioner, 

 v. 11-2654-ag

NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

_____________________________________

 

FOR PETITIONER: Gary J. Yerman, New York, New York.

FOR RESPONDENT: Tony West, Assistant Attorney General;

Douglas E. Ginsburg, Assistant

Director; Jessica R. C. Malloy, Trial

Attorney, Office of Immigration

Litigation, United States Department of

Justice, Washington, D.C.
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UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED, that the petition for review

is DENIED.

Petitioner He Sheng Chen, a native and citizen of the

People’s Republic of China, seeks review of a June 6, 2011

decision of the BIA affirming the April 28, 2010 decision of

Immigration Judge (“IJ”) denying his motion to reopen his

immigration proceedings. In re He Sheng Chen, No. A070 906

815 (B.I.A. June 6, 2011), aff’g No. A070 906 815 (Immig. Ct.

N.Y. City Apr. 28, 2010). We assume the parties’ familiarity

with the underlying facts and procedural history of the case.

For completeness’ sake, we review both the IJ’s and the

BIA’s opinions. See Wangchuck v. DHS, 448 F.3d 524, 528 (2d

Cir. 2006). We review the BIA’s denial of a motion to reopen

for abuse of discretion, mindful of the Supreme Court’s

admonition that such motions are “disfavored.” Ali v.

Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (per curiam)

(citing INS v. Doherty, 502 U.S. 314, 322-23 (1992)). 

Generally, a motion to reopen must be filed within 90 days of

the final administrative order. See 8 U.S.C.

§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Although the
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90-day period may be equitably tolled when the motion is based

on a claim of ineffective assistance of counsel, in order to

warrant equitable tolling, an alien must demonstrate “due

diligence” in pursuing his claim during “both the period of

time before the ineffective assistance of counsel was or

should have been discovered and the period from that point

until the motion to reopen is filed.” Rashid v. Mukasey, 533

F.3d 127, 131-32 (2d Cir. 2008); see also Cekic v. INS, 435

F.3d 167, 170 (2d Cir. 2006). 

Here, over eleven years elapsed between Chen’s September

1998 withdrawal of his asylum application and his April 2010

motion to reopen his immigration proceedings. Chen argues

that it was not until 2009, when his current counsel explained

to him that his previous counsel had improperly presented his

asylum application, that he discovered that his previous

counsel had been ineffective, and that he has acted with due

diligence since that discovery. We have held, however, that

“even an alien who is unfamiliar with the technicalities of

immigration law can, under certain circumstances, be expected

to comprehend that he has received ineffective assistance

without being explicitly told so by an attorney.” Rashid, 533

F.3d at 132, n.3; see also Cekic, 435 F.3d at 171 (holding
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that although petitioners reasonably relied on their

attorney’s assurances that he was actively pursuing their

case, they should have known they received ineffective

assistance once they “were aware that there was an order of

removal against them”). Chen’s affidavit supports the

conclusion that he was aware in 1998 that his attorney was

ineffective as it shows that he withdrew his asylum

application after realizing that his attorney had failed to

prepare or to request of him any supporting evidence. The

agency reasonably concluded that, at the time of that

withdrawal and the IJ’s grant of voluntary departure, Chen was

aware that he had received ineffective assistance of counsel.

Chen argues that Rashid is inapplicable because the facts

of his case are comparable to other cases in which we have

held that an alien may reasonably rely on an attorney’s

assurances that his case is being pursued. Although in

certain contexts an attorney’s assurances may excuse an

alien’s failure to pursue his claims, see, e.g., Cekic, 435

F.3d at 171; Aris v. Mukasey, 517 F.3d 595, 600 (2d Cir.

2008), Chen does not argue that he failed to pursue his claims

because he believed that an attorney was pursuing them for

him, or because an attorney had given him incorrect advice. 
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Rather, the record supports the conclusion that Chen was aware

in 1998 that he received ineffective assistance but that he

failed to exercise due diligence in pursuing his claims from

that date until April 2010.

The agency did not abuse its discretion in finding that

Chen’s motion to reopen was untimely. Because that finding is

dispositive, we decline to consider Chen’s argument that he is

prima facie eligible for asylum, withholding of removal, and

CAT relief. See 8 U.S.C. § 1229a(c)(7)(C). Finally, we lack

jurisdiction to consider Chen’s argument that the agency

abused its discretion in failing to exercise its authority to

reopen his proceedings sua sponte. See Ali v. Gonzales, 448

F.3d 515, 518 (2d Cir. 2006). 

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, the pending motion

for a stay of removal in this petition is DISMISSED as moot. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk