14-1370 Lin v. Lynch BIA A079 141 366 

### 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**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **14 th**  **day of September, two thousand fifteen.** 4 5 **PRESENT:** 6 **REENA RAGGI,** 7 **DEBRA ANN LIVINGSTON,** 8 **RAYMOND J. LOHIER, JR.,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **BAI XIANG LIN,** 13 Petitioner **,** 14 15 **v. 14-1370** 16 **NAC** 17 18 **LORETTA E. LYNCH, UNITED STATES** 19 **ATTORNEY GENERAL,** * 20 Respondent **.** 21

**_____________________________________** 22 23 **FOR PETITIONER:** Chunyu Jean Wang, Wang Law Office, 24 PLLC, Flushing, New York. 25 26 * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Loretta E. Lynch is automatically substituted for former Attorney General Eric H. Holder, Jr. as Respondent.2 **FOR RESPONDENT:** Joyce R. Branda, Acting Assistant 1 Attorney General; Song Park, Senior 2 Litigation Counsel; Surell Brady, 3 Trail Attorney, Office of 4 Immigration Litigation, United 5 States Department of Justice, 6 Washington, D.C. 7 8 UPON DUE CONSIDERATION of this petition for review of a 9 Board of Immigration Appeals (“BIA”) decision, it is hereby 10 ORDERED, ADJUDGED, AND DECREED that the petition for review is 11

DENIED. 12 Petitioner Bai Xiang Lin, a native and citizen of the 13 People’s Republic of China, seeks review of an April 11, 2014 14 decision of the BIA denying Lin’s motion to reopen. See In re 15 Bai Xiang Lin, No. A079 141 366 (B.I.A. Apr. 11, 2014). We 16 assume the parties’ familiarity with the underlying facts and 17 procedural history in this case. 18 We review the BIA’s denial of Lin’s motion for abuse of 19 discretion. See Ali v. Gonzales , 448 F.3d 515, 517 (2d Cir. 20 2006). An alien seeking to reopen proceedings may file one 21 motion to reopen no later than 90 days after the date on which 22 the final administrative decision was rendered. See 8 U.S.C. 23 § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). There is 24 no dispute that Lin’s January 2014 motion to reopen is both 25 untimely and number barred because (a) the final administrative 263 order of removal was issued in 2 009, and (b) Lin had previously 1 filed a motion to reopen in December of that year. 2 In certain circumstances, however, this time period may be 3 equitably tolled where an a lien demonstrates ineffective 4 assistance of counsel. See Rashid v. Mukasey , 533 F.3d 127, 5 130 (2d Cir. 2008). In addition to complying with the 6 procedural requirements for an ineffective assistance of 7 counsel claim, see Matter of Lozada , 19 I. & N. Dec. 637 (B.I.A. 8 1988), the alien must show (a) that his constitutional right 9 to due process has been denied as a result of the ineffective 10 assistance, and (b) that he exercised due diligence in pursuing 11 the claim for the entire time period he seeks to have tolled. 12 See Jian Hua Wang v. BIA , 508 F.3d 710, 715 (2d Cir. 2007). 13 The BIA did not abuse its discretion in denying Lin’s 14 request to equitably toll the filing deadline based on 15 ineffective assistance of counsel. The BIA reasonably 16 concluded that Lin failed to show due diligence: Lin waited over 17 four years to raise his ineffective assistance claim. Lin was 18 aware that his attorney’s recommended strategy had failed as 19 early as September 2009, when the BIA dismissed his consolidated 20 appeal, but he raised his ineffective assistance claim for the 21 first time in January 2014. He provides no evidence beyond his 224 own assertions that he was diligently pursuing an ineffective 1 assistance claim during those years. See Zheng Zhong Chen v. 2 Gonzales , 437 F.3d 267, 270 (2d Cir. 2006) (holding a delay of 3 20 months sufficient to deny equitable tolling); Rashid, 533 4 F.3d at 132-33 (holding 14 months sufficient to deny). 5 Nor did the BIA err in concluding that Lin failed to 6 demonstrate a denial of due process as a result of the alleged 7 ineffective assistance. See Cekic v. INS , 435 F.3d 167, 171 8 (2d Cir. 2007) (requiring a showing of denial of due process 9 to prevail on ineffective assistance claim). Lin argues that 10 his attorney should have advised him to file his own separate 11 applications for relief because those claims had merit, but Lin 12 did not append any application for relief to his motion, and 13 the motion did not describe any potential claims for relief. 14 In the absence of any showing of prejudice, the BIA did not abuse 15 its discretion in declining to toll the filing deadline. See 16 Ali , 448 F.3d at 517. 17 For the foregoing reasons, the petition for review is 18 DENIED. As we have completed our rev iew, any stay of removal 19 that the Court previously granted in this petition is VACATED, 20 and any pending motion for a stay of removal in this petition 21 is DISMISSED as moot. Any pending request for oral argument 225 in this petition is DENIED in accordance with Federal Rule of 1 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 2 34.1(b). 3
FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk of Court 5