         10-1534-ag
         Qu v. Holder
                                                                                       BIA
                                                                               A098 420 340
                             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 23rd day of February, two thousand eleven.
 5
 6       PRESENT:
 7                ROBERT A. KATZMANN,
 8                BARRINGTON D. PARKER,
 9                DEBRA ANN LIVINGSTON,
10                       Circuit Judges.
11       _______________________________________
12
13       JIE MIN QU, ALSO KNOWN AS JIEMIN QU
14       ZHOU FAN,
15                 Petitioner,
16
17                      v.                                      10-1534-ag
18                                                              NAC
19
20       ERIC H. HOLDER, JR., UNITED STATES ATTORNEY
21       GENERAL,
22                Respondent.
23       _______________________________________
24
25       FOR PETITIONER:               Gary J. Yerman, New York, N.Y.
26
27       FOR RESPONDENT:               Tony West, Assistant Attorney
28                                     General; Daniel E. Goldman, Senior
29                                     Litigation Counsel; Matthew A.
30                                     Spurlock, Trial Attorney, Office of
31                                     Immigration Litigation, Civil
32                                     Division, United States Department
                                       of Justice, Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   review is DENIED.

 5       Jie Min Qu, a native and citizen of the People’s

 6   Republic of China, seeks review of a March 31, 2010, order

 7   of the BIA denying her motion to reopen her removal

 8   proceedings.   In re Jie Min Qu, No. A098 420 340 (B.I.A.

 9   Mar. 31, 2010).     We assume the parties’ familiarity with the

10   underlying facts and procedural history of the case.

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

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

13   (2d Cir. 2006).     An alien who has been ordered removed may

14   file one motion to reopen, but must do so within 90 days of

15   the final administrative decision.     8 U.S.C. §

16   1229a(c)(7)(c)(1). Here, the BIA properly denied Qu’s motion

17   to reopen as untimely and number-barred, as it was her

18   second motion to reopen and was filed more than three years

19   after her July 2006 final order of removal.     See id. §

20   1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).     Moreover, the BIA

21   reasonably determined that Qu failed to satisfy an exception

22   to the time and number bars based either on ineffective

23   assistance of counsel or changed country conditions.

                                     2
 1   I.   Ineffective Assistance of Counsel

 2        Under the doctrine of equitable tolling, ineffective

 3   assistance of counsel can extend the filing deadline for an

 4   alien’s motion to reopen.   See Cekic v. INS, 435 F.3d 167,

 5   170 (2d Cir. 2006).   In order to warrant equitable tolling,

 6   however, the alien is required to demonstrate that she

 7   exercised “due diligence” in pursuing her claims during

 8   “both the period of time before the ineffective assistance

 9   of counsel was or should have been discovered and the period

10   from that point until the motion to reopen is filed.”

11   Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008).

12        The BIA did not act arbitrarily or capriciously in

13   concluding that Qu failed to exercise due diligence because

14   she filed her second motion to reopen more than three years

15   after she reasonably should have discovered that she

16   received ineffective assistance of counsel.   See Jian Hua

17   Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007).   Indeed, Qu

18   concedes that she was aware of her prior counsel’s

19   fraudulent practices at the time of the IJ’s decision.

20   Because the BIA did not abuse its discretion in finding a

21   lack of due diligence, we need not reach the merits of the

22   underlying ineffective assistance claim.   See Cekic, 435

23   F.3d at 170.

                                   3
 1   II. Changed Country Conditions

 2       The agency also reasonably found that Qu’s motion did

 3   not qualify for the changed country conditions exception to

 4   the time and numerical limitations.   See 8 C.F.R.

 5   § 1003.2(c)(3)(ii).   The evidence Qu submitted was similar

 6   to that which the BIA addressed in Matter of J-W-S-, 24 I. &

 7   N. Dec. 185 (B.I.A. 2007).   We have previously reviewed, and

 8   found no error in, the BIA’s analysis in that case.     Jian

 9   Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008).

10       Moreover, given the BIA’s explicit references to the

11   documentation submitted with the motion to reopen, a

12   reasonable fact-finder would not be compelled to conclude

13   that the BIA ignored any material evidence.    See Wei Guang

14   Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006), see also Xiao

15   Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d

16   Cir. 2006) (presuming that the agency “has taken into

17   account all of the evidence before [it], unless the record

18   compellingly suggests otherwise”).

19       Additionally, contrary to Qu’s argument, the BIA did

20   not err in giving diminished weight to both her affidavit

21   and the evidence she submitted relating to the sterilization

22   of two individuals from her home province.    See Xiao Ji

23   Chen, 471 F.3d at 342 (finding that the weight afforded to

                                   4
 1   the applicant’s evidence in immigration proceedings lies

 2   largely within the discretion of the agency).    The BIA also

 3   did not err in finding that the evidence relating to the

 4   sterilization of two individuals from her home province was

 5   not material because it did not detail the forced

 6   sterilizations of similarly situated individuals--namely,

 7   those who gave birth to two children outside of China.     See

 8   Jian Hui Shao, 546 F.3d at 160-61.    Accordingly, because Qu

 9   failed to demonstrate a material change in country

10   conditions, the BIA did not abuse its discretion in denying

11   her motion to reopen.   See 8 U.S.C. § 1229a(c)(7)(C)(ii).

12       For the foregoing reasons, the petition for review is

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

14   removal that the Court previously granted in this petition

15   is VACATED, and any pending motion for a stay of removal in

16   this petition is DISMISSED as moot.    Any pending request for

17   oral argument in this petition 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




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