09-1972-ag

Li v. Holder

BIA

A077 297 765

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 19 day of May, two thousand ten. th

5

6 PRESENT:

7 JOSÉ A. CABRANES,

8 REENA RAGGI,

9 PETER W. HALL,

10 Circuit 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

10 the underlying facts and procedural history in this case. 

11 This Court reviews the BIA’s denial of a motion to

12 reconsider for abuse of discretion. See Kaur v. BIA, 413

13 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

15 reconsider must specify errors of fact or law in the BIA’s

16 prior decision and be supported with pertinent authority. 

17 8 C.F.R. § 1003.2(b)(1). Here, the BIA did not abuse its

18 discretion in denying Li’s motion to reconsider. In denying

19 that motion, the BIA reconsidered its prior decision in

20 light of Matter of Compean, 24 I. & N. Dec. 710 (A.G. 2009),

21 concluding that the change in law did not affect its prior

22 decision. The BIA reasonably concluded that by filing her
In 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

10 to reopen is filed.”). Accordingly, the BIA did not abuse

11 its discretion when it found “no legal or factual defect” in

12 its prior decision denying Li’s untimely motion to reopen

13 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: 

10 Catherine O’Hagan Wolfe, Clerk

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