         13-4149
         Zheng v. Lynch
                                                                                       BIA
                                                                               A079 114 543
                               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 9th day of February, two thousand sixteen.
 5
 6       PRESENT:
 7                PIERRE N. LEVAL,
 8                ROSEMARY S. POOLER,
 9                GERARD E. LYNCH,
10                     Circuit Judges.
11       _____________________________________
12
13       HUA ZHENG,
14                Petitioner,
15
16                        v.                                    13-4149
17                                                              NAC
18
19       LORETTA E. LYNCH, UNITED STATES
20       ATTORNEY GENERAL,*
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:                Nataliya I. Gavlin, New York, New
25                                      York.


                 *
               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.
 1   FOR RESPONDENT:          Stuart F. Delery, Assistant Attorney
 2                            General; Katharine E. Clark, Senior
 3                            Litigation Counsel; Patricia E.
 4                            Bruckner, Trial Attorney, Office of
 5                            Immigration Litigation, Civil
 6                            Division, United States Department
 7                            of Justice, 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

12   is DENIED.

13          Petitioner Hua Zheng, a native and citizen of China,

14   seeks review of a September 30, 2013 decision of the BIA

15   denying her motion to reopen her case.       In re Hua Zheng, No.

16   A079 114 543 (B.I.A. Sept. 30, 2013).       We assume the

17   parties’ familiarity with the underlying facts and

18   procedural history.

19          “We review the denial of motions to reopen immigration

20   proceedings for abuse of discretion.”       Ali v. Gonzales, 448

21   F.3d 515, 517 (2d Cir. 2006).       A motion to reopen must be

22   filed within 90 days of a final administrative order of

23   removal. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.

24   § 1003.2(c)(2).    Zheng filed this motion more than three

25   years after the agency entered an order of removal against

26   her.    Her motion was therefore untimely.


                                     2
 1       Zheng argues, however, that the time limitation should

 2   be tolled, because her counsel was ineffective by not

 3   pursuing cancellation of removal before the immigration

 4   judge.   In order to benefit from equitable tolling, a

 5   petitioner must comply with certain procedural requirements,

 6   and must show prejudice as a result of the ineffective

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

 8   130-31 (2d Cir. 2008).   A showing of prejudice requires that

 9   an alien make a prima facie showing of eligibility for the

10   requested relief.   Rabiu v. INS, 41 F.3d 879, 882 (2d Cir.

11   1994).

12       Zheng claimed prejudice from her attorney’s failure to

13   pursue cancellation of removal under 8 U.S.C. § 1229b(b)(1)

14   and her attorney’s statement, without investigating or

15   consulting with Zheng, that she could not establish

16   continuous presence in the United States, as required under

17   that statute.   She argues that the BIA abused its discretion

18   in concluding that she had not made a prima facie showing of

19   eligibility for cancellation of removal.   Specifically, she

20   argues that the BIA should have credited an identification

21   card issued in the United States in 1996 and photographs of

22   herself allegedly in the United States in 1996, 1997, and

23   1998.

                                   3
 1       The BIA found that Zheng had failed to demonstrate ten

 2   years of continuous physical presence in the United States, as

 3   required   for    cancellation         of    removal.             See    8   U.S.C.

 4   § 1229b(b)(1)(A).       As to the documentary evidence that Zheng

 5   argues the BIA should have credited, the BIA either discounted

 6   or did not explicitly address it in its opinion.                        To support

 7   her presence in the United States during the years 1996 and

 8   1997,    Zheng   submitted      a      New       York       Language     Institute

 9   identification card issued in the name of “Wanda Zheng.”                          But

10   Zheng has not explained whether she is also known by Wanda,

11   and on her applications for cancellation and removal, she

12   responded “no” when asked whether she uses any alias or other

13   names.     See   INS    v.    Abudu,       485    U.S.      94,   109-10     (1988)

14   (recognizing     that   the    alien        “bears      a    heavy      burden”    in

15   demonstrating that reopening is warranted, and that facts and

16   ambiguities need not be viewed in the light most favorable to

17   the movant on a motion to reopen).                   While the BIA did not

18   address Zheng’s personal        photographs, we do not require the

19   BIA to expressly refute each argument or piece of evidence,

20   and we presume that it has taken into account the evidence

21   before it unless the record suggests otherwise. Jian Hui Shao

22   v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008); Xiao Ji Chen v.

23   U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006).

                                            4
 1       We find no abuse of discretion here.            The photographs

 2   either were not identifiable as taken in the United States or

 3   do not have legible date stamps.     Aside from the card and the

 4   photographs, Zheng offers no other evidence of her alleged

 5   presence in the United States from 1996 to 1999.           Given that

 6   the record supports the BIA’s findings concerning Zheng’s

 7   evidence, the BIA did not abuse its discretion in finding that

 8   she had not made a prima facie showing of eligibility for

 9   cancellation. Absent prima facie eligibility, she cannot show

10   prejudice   required   to   except   her   motion   from    the   time

11   limitation.

12       For the foregoing reasons, the petition for review is

13   DENIED.   As we have completed our review, the pending motion

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

15

16                                  FOR THE COURT:
17                                  Catherine O’Hagan Wolfe, Clerk
18
19
20




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