    09-1593-ag
    Bai Xiang v. Holder
                                                                                   BIA
                                                                          A 097 749 118
                           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
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ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 29 th day of March, two thousand ten.

    PRESENT:
             RALPH K. WINTER,
             REENA RAGGI,
             DEBRA ANN LIVINGSTON,
                     Circuit Judges.
    ______________________________________

    YU BAI XIANG,
             Petitioner,
                                                           09-1593-ag
                          v.                               NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    ______________________________________
    FOR PETITIONER:                 Don W. Pak, Philadelphia,
                                    Pennsylvania.

    FOR RESPONDENT:                 Tony West, Assistant Attorney
                                    General, Civil Division; Keith I.
                                    McManus, Senior Litigation Counsel;
                                    Michele Y.F. Sarko, Attorney, Office
                                    of Immigration Litigation, Civil
                                    Division, United States Department
                                    of Justice, Washington, D.C.
     UPON DUE CONSIDERATION of this petition for review of a

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

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

DENIED.

     Petitioner Yu Bai Xiang, a native and citizen of the

People’s Republic of China, seeks review of a March 20, 2009

order of the BIA denying her motion to reopen her removal

proceedings.     In re Yu Bai Xiang, No. A 097 749 118 (B.I.A.

Mar. 20, 2009).      We assume the parties’ familiarity with the

underlying facts and procedural history of the case.

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

abuse of discretion.        Ali v. Gonzales, 448 F.3d 515, 517 (2d

Cir. 2006).     An alien may only file one motion to reopen and

must do so within 90 days of the agency’s final administrative

decision.     8 C.F.R. § 1003.2(c)(2).           Under the doctrine of

equitable tolling, however, these time and number restrictions

may be relaxed to accommodate claims of ineffective assistance

of   counsel,   so   long    as   the   movant    has   exercised   “due

diligence” in seeking to vindicate his or her rights.                 See

Rashid v. Mukasey, 533 F.3d 127, 130-31 (2d Cir. 2008).             Here,

the BIA did not abuse its discretion in denying petitioner’s

untimely motion to reopen based on her failure to exercise


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such diligence.

    Petitioner    had    knowledge   of   the    facts   and   events

supporting her ineffective assistance claim no later than

March 2008.   She waited over eight months, until December

2008, however, to raise the claim         in    her second untimely

motion to reopen.       See Jian Hua Wang v. BIA, 508 F.3d 710,

715-16 (2d Cir. 2007) (holding that waiting eight months to

file motion to reopen did not demonstrate due diligence).

Even if we were to credit petitioner’s argument that “it was

reasonable to wait for a decision [on the pending motion to

reissue and reopen] before filing an ineffective assistance of

counsel claim,” Pet’r’s Reply at 4, she waited nearly five

months after the BIA issued that decision in July 2008 before

filing her second motion to reopen.

    For the foregoing reasons, the petition for review is

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

for a stay of removal in this petition is DISMISSED as moot.

Any pending request for oral argument in this petition is

DENIED in accordance with Federal Rule of Appellate Procedure

34(a)(2), and Second Circuit Local Rule 34.1(b).

                               FOR THE COURT:
                               Catherine O’Hagan Wolfe, Clerk




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