1 13

‐ 3003

Zhang v. Holder

BIA

A200 819 223



### 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 Thurgood Marshall United States Courthouse, 40 Foley

Square, in the City of New York, on the 24 th day of November, two thousand

fourteen.

PRESENT:

ROBERT A. KATZMANN,

Chief Judge,

REENA RAGGI,

RICHARD C. WESLEY,

Circuit Judges

.

___________________ __________________

MING

‐ ZHU ZHANG,

Petitioner

,

v. 13

‐ 3003

NAC

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,2 Respondent

.

___________________ __________________

FOR PETITIONER: Fuhao Yang, New York, NY.

FOR RESPONDENT: Stuart F. Delery, Assistant Attorney General;

David V. Bernal, Assistant Director, Office of

Immigration Litigation; Lindsay W. Zimliki,

Attorney, Office of Immigration Litigation, United

States Department of Justice, Washington, D.C.

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 Ming

‐ Zhu Zhang, a native and citizen of the People’s Republic of

China, seeks review of a July 12, 2013 decision of the BIA denying her motion to

reopen. In re Ming

‐ Zhu Zhang

, No. A200 819 223 (B.I.A. Jul. 12, 2013). We assume

the parties’ familiarity with the underlying facts and procedural history in this

case.

We review the denial of a motion to reopen for abuse of discretion. Ali v.

Gonzales

, 448 F.3d 515, 517 (2d Cir. 2006) (per curiam). It is undisputed that

Zhang’s motion to reopen was untimely because she filed it in May 2013, eight

months after her order of removal became final. 8 U.S.C. § 1229a(c)(7)(C)(i)3 (setting 90

‐ day deadline for filing to reopen); 8 C.F.R. § 1003.2(c)(2) (same). That

time limit may be excused by demonstrating that counsel was ineffective. Iavorski

v. INS

, 232 F.3d 124, 126

‐ 29 (2d Cir. 2000). However, to establish ineffective

assistance so as to warrant equitable tolling, the movant must show that

“competent counsel would have acted otherwise,” and that “[s]he was prejudiced

by

. . . counsel’s performance.” Rabiu v. INS

, 41 F.3d 879, 882 (2d Cir. 1994)

(internal quotation marks omitted).

As the BIA determined, the new evidence Zhang provided with her motion

did not show that any errors committed by counsel undermined the agency’s

adverse credibility determination. The letters may show her ability to corroborate

her allegations of past persecution, but do not resolve the problems with her

demeanor or her inconsistent testimony. Further, she provided no

documentation of her alleged marriage to a United States citizen, and her

application for adjustment on that basis remains pending. Accordingly, as Zhang

did not meet her burden to show prejudice, the BIA did not abuse its discretion in

denying her motion to reopen as untimely.4 Additionally, we typically lack jurisdiction to review the BIA’s refusal to

exercise its authority to reopen proceedings sua sponte

. See Ali

, 448 F.3d at 518.

There is a limited exception where the agency bases its denial on a misperception

of the law. See Mahmood v. Holder

, 570 F.3d 466, 469

‐ 71 (2d Cir. 2009). Here,

however, jurisdiction is lacking. The agency explicitly stated that it was denying

Zhang’s motion as a matter of discretion and did not make any determination

regarding Zhang’s eligibility for relief.

For the foregoing reasons, the petition for review is DENIED. Any pending

request for oral argument in this petition is DENIED in accordance with Federal

Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk