     14-1370
     Lin v. Lynch
                                                                                       BIA
                                                                               A079 141 366
                         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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   14th day of September, two thousand fifteen.
 5
 6   PRESENT:
 7            REENA RAGGI,
 8            DEBRA ANN LIVINGSTON,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   BAI XIANG LIN,
14            Petitioner,
15
16                  v.                                               14-1370
17                                                                   NAC
18
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,*
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     Chunyu Jean Wang, Wang Law Office,
25                                       PLLC, Flushing, New York.
26

     * Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
     Attorney General Loretta E. Lynch is automatically substituted
     for former Attorney General Eric H. Holder, Jr. as Respondent.
1    FOR RESPONDENT:            Joyce R. Branda, Acting Assistant
2                               Attorney General; Song Park, Senior
3                               Litigation Counsel; Surell Brady,
4                               Trail Attorney, Office of
5                               Immigration Litigation, United
6                               States Department of Justice,
7                               Washington, D.C.
8
9        UPON DUE CONSIDERATION of this petition for review of a

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

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

12   DENIED.

13       Petitioner Bai Xiang Lin, a native and citizen of the

14   People’s Republic of China, seeks review of an April 11, 2014

15   decision of the BIA denying Lin’s motion to reopen.   See In re

16   Bai Xiang Lin, No. A079 141 366 (B.I.A. Apr. 11, 2014).     We

17   assume the parties’ familiarity with the underlying facts and

18   procedural history in this case.

19       We review the BIA’s denial of Lin’s motion for abuse of

20   discretion.   See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.

21   2006).    An alien seeking to reopen proceedings may file one

22   motion to reopen no later than 90 days after the date on which

23   the final administrative decision was rendered.   See 8 U.S.C.

24   § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2).    There is

25   no dispute that Lin’s January 2014 motion to reopen is both

26   untimely and number barred because (a) the final administrative

                                   2
1    order of removal was issued in 2009, and (b) Lin had previously

2    filed a motion to reopen in December of that year.

3        In certain circumstances, however, this time period may be

4    equitably tolled where an alien demonstrates ineffective

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

6    130 (2d Cir. 2008).         In addition to complying with the

7    procedural requirements for an ineffective assistance of

8    counsel claim, see Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A.

9    1988), the alien must show (a) that his constitutional right

10   to due process has been denied as a result of the ineffective

11   assistance, and (b) that he exercised due diligence in pursuing

12   the claim for the entire time period he seeks to have tolled.

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

14       The BIA did not abuse its discretion in denying Lin’s

15   request   to   equitably    toll    the   filing    deadline    based   on

16   ineffective    assistance    of    counsel.        The   BIA   reasonably

17   concluded that Lin failed to show due diligence: Lin waited over

18   four years to raise his ineffective assistance claim.             Lin was

19   aware that his attorney’s recommended strategy had failed as

20   early as September 2009, when the BIA dismissed his consolidated

21   appeal, but he raised his ineffective assistance claim for the

22   first time in January 2014.        He provides no evidence beyond his

                                         3
1    own assertions that he was diligently pursuing an ineffective

2    assistance claim during those years.    See Zheng Zhong Chen v.

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

4    20 months sufficient to deny equitable tolling); Rashid, 533

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

6         Nor did the BIA err in concluding that Lin failed to

7    demonstrate a denial of due process as a result of the alleged

8    ineffective assistance.    See Cekic v. INS, 435 F.3d 167, 171

9    (2d Cir. 2007) (requiring a showing of denial of due process

10   to prevail on ineffective assistance claim).     Lin argues that

11   his attorney should have advised him to file his own separate

12   applications for relief because those claims had merit, but Lin

13   did not append any application for relief to his motion, and

14   the motion did not describe any potential claims for relief.

15   In the absence of any showing of prejudice, the BIA did not abuse

16   its discretion in declining to toll the filing deadline.     See

17   Ali, 448 F.3d at 517.

18        For the foregoing reasons, the petition for review is

19   DENIED.   As we have completed our review, any stay of removal

20   that the Court previously granted in this petition is VACATED,

21   and any pending motion for a stay of removal in this petition

22   is DISMISSED as moot.   Any pending request for oral argument

                                    4
1   in this petition is DENIED in accordance with Federal Rule of

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

3   34.1(b).

4                          FOR THE COURT:
5                          Catherine O’Hagan Wolfe, Clerk of Court




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