18-3784

Hui v. Garland

BIA

A098 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 ELECTRONIC 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.

1 At a stated term of the United States Court of Appeals 

2 for the Second Circuit, held at the Thurgood Marshall 

3 United States Courthouse, 40 Foley Square, in the City of 

New York, on the 24th 4 day of March, two thousand twenty-one.

5

6 PRESENT:

7 PIERRE N. LEVAL,

8 RICHARD J. SULLIVAN,

9 STEVEN J. MENASHI,

10 Circuit Judges.

11 _____________________________________

12

13 HONGLIAN HUI,

14 Petitioner,

15

16 v. 18-3784

17 NAC

18 MERRICK B. GARLAND, UNITED 

19 STATES ATTORNEY GENERAL,

Respondent.* 20

21 _____________________________________

22

23 FOR PETITIONER: Jim Li, Esq., Shanshan Zheng, 

24 Esq., Flushing, NY.

25

26 FOR RESPONDENT: Kohsei Ugumori , Senior Litigation 

27 Counsel; Jesse D. Lorenz, Trial 

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General 

Merrick B. Garland is automatically substituted as Respondent.
2

1 Attorney, Office of Immigration 

2 Litigation, United States 

3 Department of Justice, Washington, 

4 DC.

5 UPON DUE CONSIDERATION of this petition for review of a 

6 Board of Immigration Appeals (“BIA”) decision, it is hereby 

7 ORDERED, ADJUDGED, AND DECREED that the petition for review 

8 is DENIED.

9 Petitioner Honglian Hui, a native and citizen of the 

10 People’s Republic of China, seeks review of a November 26, 

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

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

13 005 (B.I.A. Nov. 26, 2018). We assume the parties’ 

14 familiarity with the underlying facts and procedural history.

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

16 abuse of discretion. See Debeatham v. Holder, 602 F.3d 481, 

17 484 (2d Cir. 2010). An alien may file one motion to reopen 

18 no later than 90 days after the final administrative decision. 

19 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). 

20 Hui’s 2018 motion to reopen was untimely, as it was filed 

21 almost four years after the BIA’s 2014 decision. Further, 

22 her 2018 motion was number barred because she filed a previous 

23 motion to reopen in 2017. Although the doctrine of equitable 
3

1 tolling may provide an exception to these limitations where 

2 an alien advances an argument of ineffective assistance of 

3 counsel, we find no error in the BIA’s conclusion that 

4 equitable tolling was not warranted here. To obtain such 

5 tolling, a movant must show both ineffective assistance of 

6 counsel and due diligence in raising that claim. See Rashid 

7 v. Mukasey, 533 F.3d 127, 130–32 (2d Cir. 2008). 

8 The BIA reasonably concluded that Hui failed to 

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

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

11 the ineffective assistance of counsel was or should have been 

12 discovered and the period from that point until the motion to 

13 reopen is filed.” Id. at 132. According to her 2018 motion, 

14 Hui discovered the ineffective assistance of counsel in 

15 January 2016 but did not hire present counsel until “early 

16 2017” and did not file her first motion to reopen until 

17 October 2017. Although she indicated that she called her 

18 original counsel once and consulted another attorney, she did 

19 not assert that she ever followed up and offers no explanation 

20 for her extensive delay. Accordingly, the BIA reasonably 

21 concluded that she did not demonstrate due diligence in the
4

1 21 months that elapsed between her discovery of the 

2 ineffective assistance and her filing of her first motion to 

3 reopen. Jian Hua Wang v. BIA, 508 F.3d 710, 715–16 (2d Cir. 

4 2007) (upholding denial of reopening where petitioner waited 

5 eight months to file motion); Cekic v. INS, 435 F.3d 167,

6 171–72 (2d Cir. 2006) (no diligence where petitioners waited 

7 two years after discovering ineffective assistance and 

8 submitted no evidence of actions taken); Rashid, 533 F.3d at 

9 132–33 (no diligence where petitioner learned of BIA’s 

10 adverse decision, made one phone call to counsel and then 

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

12 232 F.3d 124, 134–35 (2d Cir. 2000) (no diligence where 

13 petitioner waited two years to file motion). 

14 As Hui’s lack of due diligence is dispositive of 

15 equitable tolling, we do not reach the BIA’s additional 

16 finding that she failed to show the prejudice needed to state 

17 an ineffective assistance claim. See Rashid, 533 F.3d at 131

18 (“[N]o matter how egregiously ineffective counsel’s 

19 assistance may have been, an alien will not be entitled to 

20 equitable tolling unless he can affirmatively demonstrate 

21 that he exercised reasonable due diligence in pursuing his 
5

1 claim.” (internal quotation omitted)); see also INS v. 

2 Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts 

3 and agencies are not required to make findings on issues the 

4 decision of which is unnecessary to the results they reach.”).

5 Finally, although the BIA has the authority to reopen 

6 sua sponte despite the time and number limitations, see

7 8 C.F.R. § 1003.2(a), we lack jurisdiction to review that 

8 “entirely discretionary” decision. Ali v. Gonzales, 448 F.3d 

9 515, 518 (2d Cir. 2006). 

10 For the foregoing reasons, the petition for review is 

11 DENIED. All pending motions and applications are DENIED and 

12 stays VACATED.

13 FOR THE COURT: 

14 Catherine O’Hagan Wolfe,

15 Clerk of Court