09-03 0 1 -ag (L)

Li v. Holder BIA A095 878 118 

### UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARYO RDER 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 C ircuit 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. 1 0 Petitioner Jin Feng Li, a native and citizen of the 1 1 People’s Republic of China, seeks review of: (1) the BIA’s 1 2 December 23, 2008, decision denying her motion to reopen; 1 3 and (2) the BIA’s August 14, 2009, decision denying her 1 4 motion to reopen and reconsider. In re Jin Feng Li, No. 095 1 5 878 118 (B.I.A. Dec. 23, 2008); In re Jin Feng Li, No. 095 1 6 878 118 (B.I.A. Aug. 14, 2009). We assume the parties’ 1 7 familiarity with the underlying facts and procedural history 1 8 of this case. 1 9 We review the BIA’s denial of a motion to reopen or 2 0 reconsider for abuse of discretion, mindful of the Supreme 2 1 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 2 4 v. Gonzales , 439 F.3d 109, 111 (2d Cir. 2006). 2 5 It is beyond dispute that Li’s first motion to reopen3 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 1 0 assistance claim, an alien is required to demonstrate that 1 1 she exercised “due diligence” in pursuing her claim during 1 2 “both the period of time before the ineffective assistance 1 3 of counsel was or should have been discovered and the period 1 4 from that point until the motion to reopen is filed.” 15 Rashid v. Mukasey , 533 F.3d 127, 135 (2d Cir. 2008); see also Iavorski v. INS , 232 F.3d 124, 135 (2d Cir. 2000); Jian 16 1 7 Hua Wang v. BIA , 508 F.3d 710 (2d Cir. 2007). In this case, 1 8 the BIA did not err in finding that Li failed to demonstrate 1 9 that she exercised due diligence in pursuing her claim. 2 0 Li provided evidence that she had consulted a number of 2 1 attorneys after the issuance of the agency’s July 2004 final 2 2 order of removal, but claimed that she had difficulty4 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 1 0 medical records until 2006 or 2007 and that her mental 1 1 health issues impaired her ability to timely pursue her 1 2 claim, she has failed to explain why her medical records 1 3 were needed to pursue her ineffective assistance of counsel 1 4 claim against her former counsel or how her mental health 1 5 issues impacted her ability to timely file her motion to 1 6 reopen. In any case, Li’s latter argument is unpersuasive, 1 7 given the fact that she was able to consult and retain 1 8 several attorneys between 2004 and 2008 and to aid one of 1 9 those attorneys in the completion of paperwork in support of 2 0 her attempts to adjust status. Accordingly, the BIA did not 2 1 err in finding that Li failed to exercise due diligence. 2 2 See Rashid , 533 F.3d at 135; see also Jian Hua Wang , 5085 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 1 0 her motion to reopen was not warranted and did not abuse its 1 1 discretion by denying her motions to reopen as untimely or 1 2 her motion to reconsider the denial of her first motion to 1 3 reopen. See Rashid , 533 F.3d at 132; see also 8 C.F.R. 1 4 § 1003.2(b)(1),(c)(2). We do not consider Li’s challenges 1 5 to the agency’s underlying decision on the merits of her 1 6 application or her challenge to the fairness of her merits 1 7 hearing because she does not petition for review from that 1 8 decision. See Kaur v. BIA , 413 F.3d 232, 233 (2d Cir. 1 9 2005). 2 0 For the foregoing reasons, these petitions for review 2 1 are DENIED. As we have completed our review, any stay of 2 2 removal that the Court previously granted in this petition6 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