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.

1 At a stated term of the United States Court of Appeals for 

2 the Second Circuit, held at the Thurgood Marshall United States 

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

14th 4 day of September, two thousand fifteen. 

5 

6 PRESENT: 

7 REENA RAGGI,

8 DEBRA ANN LIVINGSTON, 

9 RAYMOND J. LOHIER, JR.,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 BAI XIANG LIN, 

14 Petitioner, 

15 

16 v. 14-1370 

17 NAC 

18 

19 LORETTA E. LYNCH, UNITED STATES 

20 ATTORNEY GENERAL,*

21 Respondent. 

22 _____________________________________ 

23 

24 FOR PETITIONER: Chunyu Jean Wang, Wang Law Office, 

25 PLLC, Flushing, New York. 

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

1 FOR RESPONDENT: Joyce R. Branda, Acting Assistant 

2 Attorney General; Song Park, Senior 

3 Litigation Counsel; Surell Brady, 

4 Trail Attorney, Office of 

5 Immigration Litigation, United 

6 States Department of Justice, 

7 Washington, D.C. 

8 

9 UPON DUE CONSIDERATION of this petition for review of a 

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

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

12 DENIED. 

13 Petitioner Bai Xiang Lin, a native and citizen of the 

14 People’s Republic of China, seeks review of an April 11, 2014 

15 decision of the BIA denying Lin’s motion to reopen. See In re 

16 Bai Xiang Lin, No. A079 141 366 (B.I.A. Apr. 11, 2014). We 

17 assume the parties’ familiarity with the underlying facts and 

18 procedural history in this case. 

19 We review the BIA’s denial of Lin’s motion for abuse of 

20 discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 

21 2006). An alien seeking to reopen proceedings may file one 

22 motion to reopen no later than 90 days after the date on which 

23 the final administrative decision was rendered. See 8 U.S.C. 

24 § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). There is 

25 no dispute that Lin’s January 2014 motion to reopen is both 

26 untimely and number barred because (a) the final administrative 
3

1 order of removal was issued in 2009, and (b) Lin had previously 

2 filed a motion to reopen in December of that year. 

3 In certain circumstances, however, this time period may be 

4 equitably tolled where an alien demonstrates ineffective 

5 assistance of counsel. See Rashid v. Mukasey, 533 F.3d 127, 

6 130 (2d Cir. 2008). In addition to complying with the 

7 procedural requirements for an ineffective assistance of 

8 counsel claim, see Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 

9 1988), the alien must show (a) that his constitutional right 

10 to due process has been denied as a result of the ineffective 

11 assistance, and (b) that he exercised due diligence in pursuing 

12 the claim for the entire time period he seeks to have tolled. 

13 See Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007). 

14 The BIA did not abuse its discretion in denying Lin’s 

15 request to equitably toll the filing deadline based on 

16 ineffective assistance of counsel. The BIA reasonably 

17 concluded that Lin failed to show due diligence: Lin waited over 

18 four years to raise his ineffective assistance claim. Lin was 

19 aware that his attorney’s recommended strategy had failed as 

20 early as September 2009, when the BIA dismissed his consolidated 

21 appeal, but he raised his ineffective assistance claim for the 

22 first time in January 2014. He provides no evidence beyond his 
4

1 own assertions that he was diligently pursuing an ineffective 

2 assistance claim during those years. See Zheng Zhong Chen v. 

3 Gonzales, 437 F.3d 267, 270 (2d Cir. 2006) (holding a delay of 

4 20 months sufficient to deny equitable tolling); Rashid, 533 

5 F.3d at 132-33 (holding 14 months sufficient to deny). 

6 Nor did the BIA err in concluding that Lin failed to 

7 demonstrate a denial of due process as a result of the alleged 

8 ineffective assistance. See Cekic v. INS, 435 F.3d 167, 171 

9 (2d Cir. 2007) (requiring a showing of denial of due process 

10 to prevail on ineffective assistance claim). Lin argues that 

11 his attorney should have advised him to file his own separate 

12 applications for relief because those claims had merit, but Lin 

13 did not append any application for relief to his motion, and 

14 the motion did not describe any potential claims for relief. 

15 In the absence of any showing of prejudice, the BIA did not abuse 

16 its discretion in declining to toll the filing deadline. See 

17 Ali, 448 F.3d at 517. 

18 For the foregoing reasons, the petition for review is 

19 DENIED. As we have completed our review, any stay of removal 

20 that the Court previously granted in this petition is VACATED, 

21 and any pending motion for a stay of removal in this petition 

22 is DISMISSED as moot. Any pending request for oral argument 
5

1 in this petition is DENIED in accordance with Federal Rule of 

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

3 34.1(b). 

4 FOR THE COURT: 

5 Catherine O’Hagan Wolfe, Clerk of Court