09-0301-ag (L)

Li v. Holder

BIA

A095 878 118

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

2 for the Second Circuit, held at the Daniel Patrick Moynihan

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

4 New York, on the 5 day of January, two thousand eleven. th

5

6 PRESENT:

7 JOSEPH M. McLAUGHLIN,

8 JOSÉ A. CABRANES,

9 RICHARD C. WESLEY,

10 Circuit Judges. 

11 _____________________________________

12

13 JIN FENG LI,

14 Petitioner, 

15

16 v. 09-0301-ag(L);

17 09-3817-ag(Con)

18 NAC

19 ERIC H. HOLDER, JR., UNITED STATES

20 ATTORNEY GENERAL,

21 Respondent.

22 _____________________________________

23

24 FOR PETITIONER: Joseph C. Hohenstein, Philadelphia,

25 Pennsylvania.

26

27 FOR RESPONDENT: Tony West, Assistant Attorney

28 General; Jennifer J. Keeney, Senior

29 Litigation Counsel; Jessica R. C.
2

1 Malloy, Trial Attorney, Office of

2 Immigration Litigation, Civil

3 Division, United States Department

4 of Justice, Washington, D.C.

5

6 UPON DUE CONSIDERATION of these petitions for review of

7 decisions of the Board of Immigration Appeals (“BIA”), it is

8 hereby ORDERED, ADJUDGED, AND DECREED, that the petitions

9 for review are DENIED.

10 Petitioner Jin Feng Li, a native and citizen of the

11 People’s Republic of China, seeks review of: (1) the BIA’s

12 December 23, 2008, decision denying her motion to reopen;

13 and (2) the BIA’s August 14, 2009, decision denying her

14 motion to reopen and reconsider. In re Jin Feng Li, No. 095

15 878 118 (B.I.A. Dec. 23, 2008); In re Jin Feng Li, No. 095

16 878 118 (B.I.A. Aug. 14, 2009). We assume the parties’

17 familiarity with the underlying facts and procedural history

18 of this case.

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

20 reconsider for abuse of discretion, mindful of the Supreme

21 Court’s admonition that such motions are “disfavored.” Ali

22 v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.

23 Doherty, 502 U.S. 314, 322-23 (1992)); see also Jin Ming Liu

24 v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006).

25 It is beyond dispute that Li’s first motion to reopen
3

1 was untimely, as it was filed approximately four years after

2 the agency issued a final removal order in her proceedings. 

3 See 8 C.F.R. § 1003.2(c)(2). Although Li contends that

4 counsel at her merits hearing provided ineffective

5 assistance and therefore she was eligible for equitable

6 tolling of some or all of the time period for filing her

7 motion to reopen, her argument is unavailing.

8 In order to warrant equitable tolling of the time

9 period for filing a motion to reopen based on an ineffective

10 assistance claim, an alien is required to demonstrate that

11 she exercised “due diligence” in pursuing her claim during

12 “both the period of time before the ineffective assistance

13 of counsel was or should have been discovered and the period

14 from that point until the motion to reopen is filed.”

15 Rashid v. Mukasey, 533 F.3d 127, 135 (2d Cir. 2008); see

16 also Iavorski v. INS, 232 F.3d 124, 135 (2d Cir. 2000); Jian

17 Hua Wang v. BIA, 508 F.3d 710 (2d Cir. 2007). In this case,

18 the BIA did not err in finding that Li failed to demonstrate

19 that she exercised due diligence in pursuing her claim. 

20 Li provided evidence that she had consulted a number of

21 attorneys after the issuance of the agency’s July 2004 final

22 order of removal, but claimed that she had difficulty
4

1 finding an attorney who would agree to represent her. 

2 However, although Li was represented by counsel from

3 December 2004 through August 2006 and again from

4 approximately February 2007 until the filing of her July

5 2008 motion to reopen, she did not explain what actions she

6 or her attorneys took to pursue her ineffective assistance

7 of counsel claim during the four years that passed before

8 she filed her motion to reopen raising that claim. In

9 addition, although Li argues that she did not receive her

10 medical records until 2006 or 2007 and that her mental

11 health issues impaired her ability to timely pursue her

12 claim, she has failed to explain why her medical records

13 were needed to pursue her ineffective assistance of counsel

14 claim against her former counsel or how her mental health

15 issues impacted her ability to timely file her motion to

16 reopen. In any case, Li’s latter argument is unpersuasive,

17 given the fact that she was able to consult and retain

18 several attorneys between 2004 and 2008 and to aid one of

19 those attorneys in the completion of paperwork in support of

20 her attempts to adjust status. Accordingly, the BIA did not

21 err in finding that Li failed to exercise due diligence. 

22 See Rashid, 533 F.3d at 135; see also Jian Hua Wang, 508
5

1 F.3d at 715-16 (finding that the fact that petitioner waited

2 an additional eight months after the receipt of documents

3 required to file a motion to reopen supported the agency’s

4 finding that the petitioner did not demonstrate that he

5 exercised due diligence). 

6 Because the BIA reasonably found that Li failed to

7 establish that she exercised due diligence in pursuing her

8 ineffective assistance of counsel claim, it did not err in

9 finding that equitable tolling of the time period for filing

10 her motion to reopen was not warranted and did not abuse its

11 discretion by denying her motions to reopen as untimely or

12 her motion to reconsider the denial of her first motion to

13 reopen. See Rashid, 533 F.3d at 132; see also 8 C.F.R. 

14 § 1003.2(b)(1),(c)(2). We do not consider Li’s challenges

15 to the agency’s underlying decision on the merits of her

16 application or her challenge to the fairness of her merits

17 hearing because she does not petition for review from that

18 decision. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.

19 2005).

20 For the foregoing reasons, these petitions for review

21 are DENIED. As we have completed our review, any stay of

22 removal that the Court previously granted in this petition
6

1 is VACATED, and any pending motion for a stay of removal in

2 this petition is DISMISSED as moot. Any pending request for

3 oral argument in this petition is DENIED in accordance with

4 Federal Rule of Appellate Procedure 34(a)(2), and Second

5 Circuit Local Rule 34.1(b).

6 FOR THE COURT: 

7 Catherine O’Hagan Wolfe, Clerk

8

9