18

- 3784 Hui v. Garland BIA A 098 470 005 

### 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 ELECTR ONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A**  **PARTY CITING TO 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** 1 **for the Second Circuit, held at the Thurgood Mar shall**  2 **United States Courthouse, 40 Foley Square, in the City of** 3 **New York, on the 2**  **4 t**  **h d**  **ay of M**  **a r**  **c h**  **, two thousand**  **twenty**
**- one** 
**.** 4 5 **PRESENT:** 6 **PIERRE N. LEVAL,** 7 **RICHARD J. SULLIVAN,** 8 **STEVEN J. MENASHI,** 9 **Circuit Judges.** 10

**_____________________________________** 11 12 **HONGLIAN HUI ,**  13 **Petitioner ,**  14 15
**v. 18** 

**- 3784**  16 **NAC** 17 **MERRICK B. GARLAND , UNITED**  18 **STATES ATTORNEY GENERAL,** 19 **Respondent**

**.** ***** 20

**_____________________________________** 21 22 **FOR PETITIONER :**  Jim Li, Esq., Shanshan Zheng, 23 Esq., Flushing, NY

. 24 25 **FOR RESPONDENT:** Kohsei Ugumori , Senior Litigation 26 Counsel ; Jesse D. Lorenz , Trial 27

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Merrick B. Garland is automatically substituted as Respondent

.2 Attorney, Office of Immigration 1 Litigation, United States 2 Department of Justice, Washington, 3 DC. 4

UPON DUE CONSIDERATION of this petition for review of a 5
Board of Immigration Appeals (“BIA”) decision, it is hereby 6
ORDERED, ADJUDGED, AND DECREED that the petition for review 7

is DENIED. 8

Petitioner Honglian Hui , a native and citizen of the 9
People’s Republic of China , seeks review of a November 26, 10

2018 decision of the BIA denying her motion to reopen her 11
administrative proceedings

. In re Honglian Hui , No. A 098 470 12

005 (B.I.A. Nov. 26, 2018 ). We assume the parties’ 13
familiarity with the underlying facts and procedural history. 14

We review the BIA’s denial of a motion to reopen for 15

abuse of discretion. See Debeatham v. Holder , 602 F.3d 481, 16
484 (2d Cir. 2010). An alien may file one motion to reopen 17
no later than 90 days after the final administrative decision. 18

8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2 ). 19
Hui’s 2018 motion to reopen was untimely , as it was filed 20

almost four years after the BIA’s 2014 de cision

. Further, 21

her 2018 motion was number barred because she filed a previous 22
motion to reopen in 2017. Although the doctrine of equitable 233 tolling may provide an exception to these limitations where 1

an alien advances an argument of ineffective assistance of 2
counsel, we find no error in the BIA’s conclusion that 3

equ itable tolling was not warranted here . To obtain such 4
tolling, a movant must show both ineffective assistance of 5

counsel and due diligence in raising that claim

. See Rashid 6
v. Mukasey , 533 F.3d 127, 130

– 3 2 (2d Cir. 2008 )

. 7

T he BIA reasonably concluded that Hui failed to 8

demonstrate due diligence “ during the entire period . . . she 9

seeks to toll ,” which “ includes both the period of time before 10

the ineffective assistance of counsel was or should have been 11
discovered and the per iod from that point until the motion to 12
reopen is filed.” Id. at 132

. A ccording to her 2018 motion, 13

Hui discovered the ineffective assistance of counsel in 14
January 2016 but did not hire present counsel until “early 15
2017” and did not file her first motion to reopen until 16

October 2017. Although she indicated that she called her 17
original counsel once and consulted another attorney, she did 18

not assert that s he ever followed up and offers no explanation 19
for her extensive delay

. Accordingly, the BIA reasonably 20
concluded that she did not demonstrate due diligence in the 214 21 months that elapsed between her discovery of the 1
ineffective assistance and her filing of her first motion to 2

reopen . Jian Hua Wang v. BIA , 508 F.3d 710, 715

– 16 (2d Cir. 3

2007) (upholding denial of reopening where petitioner waited 4
eight months to file motion); Cekic v. INS , 435 F.3d 167, 5

171

– 72 (2d Cir. 2006) (no diligence where petitioners waited 6
two years after discovering ineffective assistance and 7
submitted no evidence of actions taken); Rashid , 533 F.3d at 8

132

– 33 (no diligence where petitioner learned of BIA’s 9
adverse decision, made one phone call to coun sel and then 10

waited 14 months to seek new counsel); Iavorski v. U.S. INS , 11

232 F.3d 124, 134

– 35 (2d Cir. 2000) ( no diligence where 12

p etitioner waited two years to file motion ). 13
As Hui’s lack of due diligence is dispositive of 14
equitable tolling, we do not reach the BIA’s additional 15
finding that she failed to show the prejudice needed to state 16

an ineffective assistance claim. See Rashid , 533 F.3d at 131 17
(“[N]o matter how egregiously ineffective counsel’s 18
assistance may have been, an alien will not be entitled to 19
equitable tolling unless he can affirmatively demonstrate 20
that he exercised reasonable due diligence in pursuing his 215 claim.” (internal quotation omitted)); see also INS v. 1
Bagamasbad , 429 U.S. 24 , 2 5 (1976) (“As a general rule courts 2
and agencies are not required to make findings on issues the 3
decision of which is unnecessary to the results they reach.”). 4
Finally, although the BIA has the authority to reopen 5
sua sponte despite the time and number limitations, see 6

8 C.F.R. § 1003.2(a), we lack jurisdiction to review that 7
“entirely discretionary” decision. Ali v. Gonzales , 448 F.3d 8
515, 518 (2d Cir. 2006). 9
For the foregoing reasons, the p etition for review is 10

DENIED

. All pending motions and applications are DENIED and 11

stays VACATED. 12

FOR THE COURT: 13 Catherine O’Hagan Wolfe, 14 Clerk of Court 15