Pursuant to Federal Rule of Appellate Procedure *

43(c)(2), Attorney General Eric H. Holder, Jr. is

automatically substituted for former Attorney General

Michael B. Mukasey as respondent in this case.

08-6056-ag

Liu v. Holder

BIA

A077 007 739

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 11 day of March, two thousand ten. th

PRESENT:

GUIDO CALABRESI,

ROBERT A. KATZMANN,

BARRINGTON D. PARKER,

 Circuit Judges. 

_________________________________________

YUN QING LIU,

Petitioner, 

 v. 08-6056-ag

 NAC

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,*

Respondent.

_________________________________________

 

FOR PETITIONER: Theodore N. Cox, New York, N.Y.

FOR RESPONDENT: Tony West, Assistant Attorney

General; Christopher C. Fuller,

Senior Litigation Counsel; Zoe J.
2

Heller, Trial Attorney, Civil

Division, Office of Immigration

Litigation, United States Department

of Justice, Washington, DC

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 Yun Qing Liu, a native and citizen of the

People’s Republic of China, seeks review of the November 18,

2008 order of the BIA, which denied her motion to reopen. 

In re Yun Qing Liu, No. A077 007 739 (B.I.A. Nov. 18, 2008). 

We assume the parties’ familiarity with the underlying facts

and procedural history of the case.

We review the BIA’s denial of a motion to reopen for

abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d

Cir. 2005) (per curiam). Here, the BIA did not abuse its

discretion in denying Liu’s motion to reopen as untimely

because she filed it over five years after the BIA issued

its final order of removal. See 8 C.F.R. § 1003.2(c)(2). 

In some circumstances, under the doctrine of equitable

tolling, ineffective assistance of counsel can extend the

filing deadline for an alien’s motion to reopen. See Cekic
3

v. INS, 435 F.3d 167, 170 (2d Cir. 2006). In order to

warrant equitable tolling, however, the alien is required to

demonstrate that she exercised “due diligence” in pursuing

her claims 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.” See Rashid v. Mukasey, 533 F.3d 127,

132 (2d Cir. 2008).

The BIA did not act arbitrarily or capriciously in

concluding that Liu failed to exercise due diligence. 

Though “there is no period of time which we can say is per

se unreasonable,” Jian Hua Wang v. BIA, 508 F.3d 710, 715

(2d Cir. 2007), Liu filed her first motion to reopen three

years after she reasonably should have discovered that she

received ineffective assistance of counsel. Liu asserts

that she did not become aware of the ineffective assistance

of her previous counsel until May 2008, when she filed her

second motion to reopen. The record is clear that, in

February 2003, Liu was aware that the initial BIA notice of

decision denying her petition for asylum and withholding of

removal had been mailed to an incorrect address. She points

to no evidence indicating that, despite this fact, she
4

diligently pursued her claim between 2003 and 2006, save for

an unspecific contention that, at some point after February

2003, she sought a second opinion from other lawyers. We

find that the petitioner has not met her burden in

demonstrating due diligence, see Rashid, 533 F.3d at 132,

and the BIA therefore did not err in finding that the

circumstances do not warrant equitable tolling.

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