         13-64
         Li v. Holder
                                                                                       BIA
                                                                               A089 254 475
                         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 24th day of April, two thousand fourteen.
 5
 6       PRESENT:
 7                PIERRE N. LEVAL,
 8                GUIDO CALABRESI,
 9                JOSÉ A. CABRANES,
10                     Circuit Judges.
11       _____________________________________
12
13       HAISONG LI, AKA LI HAISONG,
14                Petitioner,
15
16                      v.                                      13-64
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Robert J. Adinolfi, New York, NY.
24
25       FOR RESPONDENT:               Stuart F. Delerey, Assistant
26                                     Attorney General; John S. Hogan,
27                                     Senior Litigation Counsel; Robbin K.
28                                     Blaya, Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     Washington, D.C.
 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       Haisong Li, a native and citizen of the People’s

 6   Republic of China, seeks review of the December 12, 2012,

 7   decision of the BIA denying her motion to reopen.     In re

 8   Haisong Li, No. A089 254 475 (B.I.A. Dec. 12, 2012).        We

 9   assume the parties’ familiarity with the underlying facts

10   and procedural history in this case.

11       There is no dispute that Li’s motion to reopen, filed

12   two years after the conclusion of removal proceedings, was

13   untimely.     See 8 U.S.C. § 1229a(c)(7)(C)(i) (An alien

14   seeking to reopen proceedings may file a motion to reopen no

15   later than 90 days after the date on which the final

16   administrative decision was rendered); see also 8 C.F.R.

17   § 1003.2(c)(2) (same).     However, the 90-day period for

18   filing a motion to reopen may be equitably tolled when the

19   motion is based on a claim of ineffective assistance of

20   counsel.     See Rashid v. Mukasey, 533 F.3d 127, 130-32 (2d

21   Cir. 2008); Jin Bo Zhao v. INS, 452 F.3d 154, 159 (2d Cir.

22   2006).     Equitable tolling requires a showing that “(1)

23   counsel’s conduct violated [the] constitutional right to due

                                     2
 1   process, and (2) [the applicant] ‘has exercised due

 2   diligence in pursuing the case during the period [she] seeks

 3   to toll.’”   Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006)

 4   (quoting Iavorski v. INS, 232 F.3d 124, 135 (2d Cir. 2000)).

 5   To demonstrate the required due process violation, a movant

 6   must allege facts sufficient to show that competent counsel

 7   would have acted otherwise, and that she was prejudiced by

 8   counsel’s performance.    See Rabiu v. INS, 41 F.3d 879, 882

 9   (2d Cir. 1994).   Finally, a demonstration of prejudice

10   requires “a prima facie showing that [s]he would have been

11   eligible for the relief [sought] and that [s]he could have

12   made a strong showing in support of [her] application.”      Id.

13       The BIA did not abuse its discretion in finding that Li

14   failed to establish prejudice because the record does not

15   support Li’s arguments.   Li’s principal argument is that,

16   had her attorney provided a Korean translator during the

17   preparation of her asylum application, and requested a

18   Korean–rather than Mandarin–translator at her hearing, there

19   would have been no inconsistency in her testimony,

20   particularly with respect to her baptism, sufficient to

21   support an adverse credibility determination.   However, she

22   does not address the other inconsistencies cited in support


                                    3
 1   of the adverse credibility determination, and does not blame

 2   them on counsel or counsel’s paralegal.    Li claims, in

 3   essence, that her testimony was true but her written

 4   application, to the extent it is inconsistent with her

 5   testimony, was wrong; however, there is no support in the

 6   record to support this bare assertion.    To the contrary, the

 7   record demonstrates that: (1) she learned Mandarin in

 8   school; (2) she responded appropriately to questions posed

 9   to her in Mandarin during the hearing, and the record does

10   not indicate that she had difficulty understanding them; and

11   (3) she stated, at the outset of her hearing, that she

12   understood the Mandarin interpreter, and never asked for a

13   Korean translator.   Accordingly, the record does not support

14   the inference that, had she been provided a Korean

15   translator, she would have been able to make a stronger

16   showing in support of her application.    Cf. Rabiu, 41 F.3d

17   at 882.   Because Li did not meet her burden, the BIA did not

18   abuse its discretion by denying reopening.

19       Moreover, we decline Li’s invitation to remand for the

20   BIA to consider whether to exercise its discretion to reopen

21   her asylum proceedings sua sponte.   She failed to raise an

22   argument for sua sponte reopening before the agency.       See


                                   4
 1   Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d

 2   Cir. 2007) (reaffirming that this Court “may consider only

 3   those issues that formed the basis for [the BIA’s]

 4   decision”).

 5       Accordingly, the petition for review is DENIED.   As we

 6   have completed our review, any stay of removal that the

 7   Court previously granted in this petition is VACATED, and

 8   any pending motion for a stay of removal in this petition is

 9   DISMISSED as moot.   Any pending request for oral argument in

10   this petition is DENIED in accordance with Federal Rule of

11   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

12   34.1(b).

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




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