         14-243
         Xu v. Holder
                                                                                       BIA
                                                                               A089 253 586
                             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 29th day of October, two thousand fourteen.
 5
 6       PRESENT:
 7                ROBERT D. SACK,
 8                BARRINGTON D. PARKER,
 9                RICHARD C. WESLEY,
10                     Circuit Judges.
11       _____________________________________
12
13       CHENG SHU XU,
14                Petitioner,
15
16                      v.                                      14-243
17                                                              NAC
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:               Stuart Altman, New York, New York.
25
26      FOR RESPONDENT:                Stuart F. Delery, Assistant Attorney
27                                     General; Mary Jane Candaux, Assistant
28                                     Director, Office of Immigration
29                                     Litigation; Robbin K. Blaya, Trial
 1                           Attorney, Office of Immigration
 2                           Litigation, United States Department
 3                           of Justice, Washington, D.C.
 4
 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 Cheng Shu Xu, a native and citizen of the

10   People’s Republic of China, seeks review of a January 13,

11   2014, decision of the BIA denying her motion to reopen.     In

12   re Cheng Shu Xu, No. A089 253 586 (B.I.A. Jan. 13, 2014).

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

14   of discretion.   See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.

15   2005) (per curiam).   We assume the parties’ familiarity with

16   the underlying facts and procedural history of the case.

17       The BIA’s denial of Xu’s motion to reopen as untimely

18   was not an abuse of discretion.   A motion to reopen

19   generally must be filed no later than 90 days after the date

20   on which the final administrative decision has been rendered

21   in the proceedings sought to be reopened.   8 U.S.C.

22   § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).   Xu’s

23   September 2013 motion was untimely from the agency’s March

24   2012 final administrative decision.


                                   2
 1       In some instances, an alien may toll the time period

 2   for filing a motion to reopen by demonstrating ineffective

 3   assistance of counsel.     See Rashid v. Mukasey, 533 F.3d 127,

 4   130 (2d Cir. 2008).    In order to toll the time period, in

 5   addition to complying with the procedural requirements for

 6   an ineffective assistance of counsel claim, the alien must

 7   show prejudice as a result of the ineffective assistance,

 8   and must have exercised due diligence in pursuing the claim.

 9   See Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007).

10   An alien is required to demonstrate “due diligence” in

11   pursuing claims during “both the period of time before the

12   ineffective assistance of counsel was or should have been

13   discovered and the period from that point until the motion

14   to reopen is filed.”     Rashid, 533 F.3d at 132.

15       The BIA did not abuse its discretion in denying Xu’s

16   request to equitably toll the filing deadline.      First, as

17   the BIA determined, Xu failed to show due diligence in

18   pursuing her ineffective assistance of counsel claim.      She

19   discovered her attorney’s failure to include her 2004 forced

20   abortion in her asylum application at her 2009 merits

21   hearing.   But she failed to raise the issue at the hearing

22   or on appeal.   She then waited approximately 18 months after


                                     3
 1   the BIA’s decision to file her motion to reopen.     This delay

 2   evidenced a lack of due diligence.    See Zheng Zhong Chen v.

 3   Gonzales, 437 F.3d 267, 270 (2d Cir. 2006)(holding a delay

 4   of 20 months sufficient to deny equitable tolling); Rashid,

 5   533 F.3d at 132-33 (holding 14 months sufficient to deny).

 6       Because a showing of due diligence is a prerequisite to

 7   excusing the untimely filing of a motion to reopen, Xu’s

 8   failure to show that diligence is dispositive.     We decline

 9   to reach the BIA’s alternative determination that Xu failed

10   to show prejudice.   INS v. Bagamasbad, 429 U.S. 24, 25

11   (1976)(“As a general rule courts and agencies are not

12   required to make findings on issues the decision of which is

13   unnecessary to the results they reach.”).

14       For the foregoing reasons, the petition for review is

15   DENIED.   As we have completed our review, any pending motion

16   for stay of removal is DISMISSED as moot. Any pending

17   request for oral argument is DENIED in accordance with

18   Federal Rule of Appellate Procedure 34(a)(2), and Second

19   Circuit Local Rule 34.1(b).

20                                 FOR THE COURT:
21                                 Catherine O'Hagan Wolfe, Clerk
22
23




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