         11-2792
         Liu v. Holder
                                                                                       BIA
                                                                               A072 485 204


                           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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 29th day of August, two thousand twelve.
 5
 6       PRESENT:
 7                       ROBERT D. SACK,
 8                       GERARD E. LYNCH,
 9                       SUSAN L. CARNEY,
10                            Circuit Judges.
11
12
13       XING-GUO LIU, AKA XIAN KUO LIU,
14       AKA TAK CHAI LIN,
15                Petitioner,
16
17                        v.                                    11-2792
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22
23
24       FOR PETITIONER:               Cora J. Chang, New York, New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Carl H. McIntyre, Jr.,
28                                     Assistant Director; Linda Y. Cheng,
 1                             Trial Attorney, Office of
 2                             Immigration Litigation, United
 3                             States Department of Justice,
 4                             Washington, D.C.

 5       UPON DUE CONSIDERATION of this petition for review of a

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

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

 8   review is DENIED.

 9       Xing-Guo Liu, a native and citizen of the People’s

10   Republic of China, seeks review of a June 28, 2011, decision

11   of the BIA denying his motion to reopen.     In re Xing-Guo

12   Liu, No. A072 485 204 (B.I.A. June 28, 2011).     We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history of this case.

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

16   abuse of discretion.     See Ali v. Gonzales, 448 F.3d 515, 517

17   (2d Cir. 2006).     There is no dispute that Liu’s motion to

18   reopen was untimely because it was filed more than seven

19   years after the agency’s final order of removal,

20   see 8 U.S.C. § 1229a(c)(7)(C)(I).

21       However, time limitations on motions to reopen may be

22   equitably tolled to accommodate claims of ineffective

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

24   130-32 (2d Cir. 2008); Jin Bo Zhao v. INS, 452 F.3d 154, 159

                                     2
 1   (2d Cir. 2006).     An individual seeking equitable tolling is

 2   required to demonstrate, inter alia, “due diligence” in

 3   pursuing his claim during “both the period of time before

 4   the ineffective assistance of counsel was or should have

 5   been discovered and the period from that point until the

 6   motion to reopen is filed.”     Rashid, 533 F.3d at 130-32.

 7   Moreover, to prevail on an ineffective assistance of counsel

 8   claim, the alien must comply with certain procedures laid

 9   out by the BIA in Matter of Lozada, 19 I&N Dec. 637 (BIA

10   1988).   See Twum v. INS, 411 F.3d 54, 59 (2d Cir. 2005).

11       The BIA did not abuse its discretion in denying

12   reopening.   Liu did not comply with the procedural

13   requirements enumerated in Matter of Lozada, as Liu failed

14   to submit affidavits setting forth his agreements with two

15   of his former attorneys, proof that he had notified his

16   former attorneys of the allegations of ineffective

17   assistance and allowed them an opportunity to respond, or

18   proof that he had filed disciplinary complaints alleging

19   violations of ethical or legal obligations against his

20   former attorneys.     See Twum, 411 F.3d at 59 (citing Matter

21   of Lozada, 19 I&N Dec. at 639); see also Jian Yun Zheng v.

22   U.S. Dep’t of Justice, 409 F.3d 43, 46 (2d Cir. 2005) (“[A]n


                                     3
 1   alien who has failed to comply substantially with the Lozada

 2   requirements in her motion to reopen before the BIA forfeits

 3   her ineffective assistance of counsel claim in this

 4   Court.”).

 5       Additionally, even assuming compliance with Lozada as

 6   required to obtain reopening, the BIA did not abuse its

 7   discretion in denying the motion as untimely and declining

 8   to equitably toll the filing deadline.     As the BIA found,

 9   Liu failed to demonstrate that he exercised due diligence in

10   pursuing reopening based on a claim of ineffective

11   assistance of counsel.     See Rashid, 533 F.3d at 132.   The

12   personal statement that Liu submitted in support of

13   reopening shows that Liu was aware, or should have been

14   aware, of the ineffective assistance at least seven years

15   prior to the filing of his motion given that the immigration

16   consulting service failed to prepare an accurate asylum

17   application, and his former attorneys failed to amend his

18   application and/or to indicate at any point during his

19   proceedings that he had been forcibly sterilized in China.

20   See id.     Liu’s alleged ignorance of the law did not prevent

21   him from recognizing this defective conduct prior to the

22   filing of his motion.     Id. at 132 n.3 (recognizing that

23   “even an alien who is unfamiliar with the technicalities of

                                     4
 1   immigration law can, under certain circumstances, be

 2   expected to comprehend that the has received ineffective

 3   assistance without being explicitly told so by an

 4   attorney”).    Accordingly, because Liu was aware, or should

 5   have been aware, of the alleged ineffective assistance by

 6   the time his proceedings concluded he did not exhibit the

 7   type of diligence required for equitable tolling and the BIA

 8   did not abuse its discretion by denying his motion as

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

10   Cir. 2007) (finding petitioner who waited eight months to

11   file motion to reopen after discovering ineffective

12   assistance of former counsel did not demonstrate due

13   diligence); Iavorski v. INS, 232 F.3d 124, 134 (2d Cir.

14   2000) (finding a lack of due diligence when petitioner

15   failed to investigate status of appeal for approximately two

16   years).

17       For the foregoing reasons, the petition for review is

18   DENIED.

19                                 FOR THE COURT:
20                                 Catherine O’Hagan Wolfe, Clerk
21




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