         12-2144
         Lin v. Holder
                                                                                       BIA
                                                                               A077 322 368
                           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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 6th day of September, two thousand thirteen.
 5
 6       PRESENT:
 7                BARRINGTON D. PARKER,
 8                GERARD E. LYNCH,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       MAO LIN,
14                       Petitioner,
15
16
17                       v.                                     12-2144
18                                                              NAC
19
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23       _____________________________________
24
25
26       FOR PETITIONER:                Thomas V. Massucci, New York, New
27                                      York.
28
29       FOR RESPONDENT:                Stuart F. Delery, Principal Deputy
30                                      Assistant Attorney General; Luis E.
31                                      Perez, Senior Litigation Counsel;
32                                      Dawn S. Conrad, Trial Attorney,
 1                           Office of Immigration Litigation,
 2                           Civil Division, United States
 3                           Department of Justice, Washington,
 4                           D.C.
 5
 6       UPON DUE CONSIDERATION of this petition for review of a

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

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

 9   is DENIED in part and DISMISSED in part.

10       Petitioner Mao Lin, a native and citizen of China,

11   seeks review of an April 27, 2012, decision of the BIA

12   denying his motion to reopen.       In re Mao Lin, No. A077 322

13   368 (B.I.A. Apr. 27, 2012).     We assume the parties’

14   familiarity with the underlying facts and procedural history

15   in this case.

16       We have reviewed the BIA’s denial of Lin’s motion to

17   reopen for abuse of discretion.       See Kaur v. BIA, 413 F.3d

18   232, 233 (2d Cir. 2005) (per curiam).      It is undisputed that

19   Lin’s motion to reopen was untimely filed as the agency’s

20   final order of removal was entered in 2002 and Lin did not

21   file his motion to reopen until 2011, well beyond the 90-day

22   deadline.   See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R.

23   § 1003.2(c)(2).   Moreover, the BIA did not err in declining

24   to equitably toll the applicable time period based on Lin’s

25   ineffective assistance claim.

                                     2
 1       In order to warrant equitable tolling, even assuming

 2   that prior counsel was ineffective, an alien is required to

 3   demonstrate “due diligence” in pursuing his claim during

 4   “both the period of time before the ineffective assistance

 5   of counsel was or should have been discovered and the period

 6   from that point until the motion to reopen is filed.”

 7   Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008); see

 8   also Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006).    The

 9   BIA did not err in finding that Lin failed to demonstrate

10   due diligence because he admitted discovering the alleged

11   ineffective assistance in 2002, and, aside from “talking to

12   lawyers” in the subsequent years, he did not assert that he

13   took any actions to pursue reopening until he filed his

14   motion nearly a decade later, in 2011.   See Jian Hua Wang v.

15   BIA, 508 F.3d 710, 715 (2d Cir. 2007).

16       Additionally, even though Lin’s ineffective assistance

17   claim was based on allegations against a non-attorney

18   immigration consultant, the BIA did not err by requiring Lin

19   to comply to the extent practicable with the procedural

20   requirements for raising an ineffective assistance of

21   counsel claim detailed in Matter of Lozada, 19 I. & N. Dec.

22   637 (B.I.A. 1988).   See Omar v. Mukasey, 517 F.3d 647, 651


                                   3
 1   (2d Cir. 2008).    Accordingly, the BIA did not abuse its

 2   discretion in rejecting Lin’s ineffective assistance of

 3   counsel claim, and we deny his petition for review in this

 4   regard.    See Rashid, 533 F.3d at 131; see also Omar, 517

 5   F.3d at 651.

 6       Although we generally lack jurisdiction to consider the

 7   BIA’s “entirely discretionary” decision regarding whether to

 8   reopen removal proceedings sua sponte, Ali v. Gonzales, 448

 9   F.3d 515, 518 (2d Cir. 2006), we retain jurisdiction to

10   consider an argument that the agency declined to exercise

11   its sua sponte authority based on a misperception of the

12   law, see Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir.

13   2009).    Here, contrary to Lin’s contention, the BIA did not

14   mischaracterize his motion to reopen because, as the BIA

15   concluded, he ultimately sought the same relief as in his

16   initial proceedings.    Accordingly, we dismiss the petition

17   for review to the extent that it challenges the BIA’s

18   decision regarding whether to exercise its sua sponte

19   authority.     See Mahmood, 570 F.3d at 469.

20

21

22



                                     4
1       For the foregoing reasons, the petition for review is

2   DENIED in part and DISMISSED in part.    As we have completed

3   our review, the pending motion for a stay of removal in this

4   petition is DENIED as moot.

5                                 FOR THE COURT:
6                                 Catherine O’Hagan Wolfe, Clerk
7
8
9




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