10-5207-ag
Lin v. Holder

                                                                                BIA
                                                                           Weisel, IJ
                                                                        A070 896 924
                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.

     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 4th day of January, two thousand twelve.

PRESENT:
         JON O. NEWMAN,
         ROBERT A. KATZMANN,
         SUSAN L. CARNEY,
              Circuit Judges.
_________________________________________

YI DA LIN,
         Petitioner,

                  v.                                               10-5207-ag
                                                                          NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
_________________________________________

FOR PETITIONER:                Wendy Tso, New York, New York.

FOR RESPONDENT:                Tony West, Asistant Attorney General;
                               Terri J. Scadron, Assistant Director;
                               Lisa Morinelli, Trial Attorney, Office
                               of Immigration Litigation, United
                               States Department of Justice, Washing-
                               ton, 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       Yi     Da   Lin,   a     native    and    citizen   of   the

People’s Republic of China, seeks review of a November 30,

2010, decision of the BIA, affirming the June 8, 2010, order

of Immigration Judge (“IJ”) Robert D. Weisel denying his

motion to reopen.         In re Yi Da Lin, No. A070 896 924 (B.I.A.

Nov. 30, 2010), aff’g No. A070 896 924 (Immig. Ct. N.Y. City

June 8, 2010).       We assume the parties’ familiarity with the

underlying facts and procedural history of the case.

    As an initial matter, we note that the agency erred in

referring      to   Lin’s    motion,     which    sought       to   present   new

evidence in support of rescinding an in absentia removal

order, as a motion to reconsider as opposed to a motion to

reopen.    See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d

83, 90 (2d Cir. 2001) (providing that a motion to reconsider

must specify error in a prior agency decision, whereas a

motion    to   reopen     must    present      new     facts   and   evidence).

However, remand to correct this error would be futile because,

as discussed below, the agency reasonably considered the new

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evidence and arguments made in Lin’s motion as if it were a

motion to reopen and we can confidently predict that its

analysis would be the same on remand.                 See Shunfu Li v.

Mukasey, 529 F.3d 141, 150 (2d Cir. 2008).

      We have reviewed the denial of Lin’s motion to reopen for

abuse of discretion.         See Alrefae v. Chertoff, 471 F.3d 353,

357 (2d Cir. 2006).         An order of removal entered in absentia

may be rescinded only: (1) upon a motion filed within 180 days

after   the    date    of   the   order    of    removal    if    the     alien

demonstrates     that    the   failure    to     appear    was    because      of

exceptional circumstances; or (2) upon a motion to reopen

filed at any time if the alien demonstrates that he did not

receive notice as required or demonstrates that he was in

federal or state custody and the failure to appear was through

no fault of his own.           8 U.S.C. § 1229a(b)(5)(C); 8 C.F.R.

§   1003.23(b)(4)(ii).         Although    Lin    claimed    not     to      have

received his Notice to Appear because it was provided to him

in English, we have rejected the argument that a Notice to

Appear is defective because it is not read to an alien in his

native language.        See Lopes v. Gonzales, 468 F.3d 81, 84-85

(2d   Cir.    2006).     Therefore,      Lin’s    motion    rested      on    his

argument      that     exceptional       circumstances,          namely       the

                                    -3-
ineffective assistance of his immigration services agency,

caused his failure to appear at his hearing, and his motion

was subject to a 180-day time limitation.   See id.; see also

8 U.S.C. § 1229a(b)(5)(C); 8 C.F.R. § 1003.23(b)(4)(ii). That

motion, filed in 2010, was undisputably untimely as it was

filed more that eleven years after the IJ’s 1998 in absentia

order of removal.   See 8 U.S.C. § 1229a(b)(5)(C); 8 C.F.R.

§ 1003.23(b)(4)(ii).

    The agency did not abuse its discretion in declining to

equitably toll the time period for filing Lin’s motion because

he failed to demonstrate that he exercised due diligence in

pursuing reopening based on the ineffective assistance of an

immigration services agency.    In order to warrant equitable

tolling, even assuming that a movant demonstrated that prior

counsel was ineffective, an alien is required to demonstrate

“due diligence” in pursuing his claim during “both the period

of time before the ineffective assistance of counsel was or

should have been discovered and the period from that point

until the motion to reopen is filed.”   Rashid v. Mukasey, 533

F.3d 127, 131-32 (2d Cir. 2008); see also Cekic v. INS, 435

F.3d 167, 170 (2d Cir. 2006).        We have noted that, in

considering whether a petitioner exercised due diligence,

                               -4-
“there is no period of time which we can say is per se

unreasonable, and, therefore, disqualifies a petitioner from

equitable tolling–or, for that matter, any period of time that

is per se reasonable.”         Jian Hua Wang v. BIA, 508 F.3d 710,

715 (2d Cir. 2007).          Here, the agency reasonably found that

Lin failed to demonstrate that he acted with due diligence

because, aside from asking unidentified friends and agencies

for advice regarding how to proceed immediately after learning

that his agency had closed in 1998, he failed to take any

action in his proceedings for more than eleven years, until he

was detained in 2010.         See Cekic, 435 F.3d at 171; see also

Jian    Hua    Wang,   508   F.3d   at    715.   Thus,    as   the   agency

reasonably      concluded    that   Lin    failed   to   demonstrate    due

diligence in pursuing his claim, it did not err in declining

to toll the time period for filing his motion to reopen.                See

Jian Hua Wang, 508 F.3d at 715-16.

       For the foregoing reasons, the petition for review is

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

that the Court previously granted in this petition is VACATED,

and 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


                                    -5-
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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