09 -1 972- ag

Li v. Holder BIA A077 297 765 

### UNITE D STATES COURT OFAPPEALS FOR T HE SE COND CIRCU IT 

# SUM MARY ORDE R

RULINGS BY SUMMARY ORDER DO NOT HAV E PR ECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFT ERJANUARY 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 19 day of May, two thousand ten. th 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 REENA RAGGI, 9 PETER W. HALL, 10 C ircuit Judges . 11

_________________________________________ 12 13 AI TING LI, A.K.A. AI QIN LI, 14 Petitioner , 15 16 v. 09-1972-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent . 21

_________________________________________ 22 23 FOR PETITIONER: Ai Ting Li, New York, New York. 24 25 FOR RESPONDENT: Tony West, Assistant Attorney 26 General, Civil Division; Stephen J. 27 Flynn, Assistant Director, Office of 28 Immigration Litigation; Jeffrey R. 29 Meyer, Trial Attorney, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 Washington, D.C.2 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED, that the petition for review 4 is DENIED. 5 Petitioner Ai Ting Li, a native and citizen of the 6 People’s Republic of China, seeks review of an April 10, 7 2009, order of the BIA denying her motion to reconsider. In 8 re Ai Ting Li , a.k.a. Ai Qin Li, No. A077 297 765 (B.I.A. 9 April 10, 2009). We assume the parties’ familiarity with 1 0 the underlying facts and procedural history in this case. 1 1 This Court reviews the BIA’s denial of a motion to 1 2 reconsider for abuse of discretion. See Kaur v. BIA , 413 1 3 F.3d 232, 233 (2d Cir. 2005) (per curiam); Jin Ming Liu v. 14 Gonzales , 439 F.3d 109, 111 (2d Cir. 2006). A motion to 1 5 reconsider must specify errors of fact or law in the BIA’s 1 6 prior decision and be supported with pertinent authority. 1 7 8 C.F.R. § 1003.2(b)(1). Here, the BIA did not abuse its 1 8 discretion in denying Li’s motion to reconsider. In denying 1 9 that motion, the BIA reconsidered its prior decision in 2 0 light of Matter of Compean, 24 I. & N. Dec. 710 (A.G. 2009), 2 1 concluding that the change in law did not affect its prior 2 2 decision. The BIA reasonably concluded that by filing herIn June 2009, current Attorney General Holder vacated * the former Attorney General’s decision in Matter of Compean, directing the agency to “apply the pre- Compean standards to all pending and future motions to reopen based upon ineffective assistance of counsel, regardless of when such motions were filed.” Matter of Compean , 25 I. & N. Dec. 1, 3 (A.G. 2009). Nonetheless, the BIA’s reliance on Compean does not affect the outcome of this case. In order to establish ineffective assistance of counsel under both the Compean and pre-Compean standards, an alien is required to demonstrate that she exercised due diligence in pursuing her ineffective assistance of counsel claim. See Jian Yun Zheng v. U.S. Dep’t of Justice , 409 F.3d 43, 47 (2d Cir. 2005). Here, the BIA denied Li’s motion based on her failure to demonstrate that she exercised due diligence – a dispositive reason for denying a motion to reopen based on ineffective assistance of counsel independent of the vacated Compean decision. 3 1 motion to reopen more than 90 days after her discovery of 2 the alleged attorney misconduct, Li failed to exercise due 3 diligence. This conclusion is consistent with our prior 4 decisions. See, e.g., Rashid v. Mukasey , 533 F.3d 127, 132 5 (2d Cir. 2008) (in order to warrant equitable tolling, an 6 alien is required to demonstrate “due diligence” in pursuing 7 his claims during “both the period of time before the 8 ineffective assistance of counsel was or should have been 9 discovered and the period from that point until the motion 1 0 to reopen is filed.”). Accordingly, the BIA did not abuse 1 1 its discretion when it found “no legal or factual defect” in 1 2 its prior decision denying Li’s untimely motion to reopen 1 3 based on ineffective assistance of counsel. *4 1 For the foregoing reasons, the petition for review is 2 DENIED. As we have completed our review, any stay of 3 removal that the Court previously granted in this petition 4 is VACATED, and any pending motion for a stay of removal in 5 this petition is DISMISSED as moot. Any pending request for 6 oral argument in this petition is DENIED in accordance with 7 Federal Rule of Appellate Procedure 34(a)(2), and Second 8 Circuit Local Rule 34.1(b). 9 FOR THE COURT: 1 0 Catherine O’Hagan Wolfe, Clerk 11 12