         09-2133-ag
         Jiang v. Holder
                                                                                       BIA
                                                                               A095 716 702
                            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 4 th day of February, two thousand ten.
 5
 6       PRESENT:
 7                ROBERT D. SACK,
 8                RICHARD C. WESLEY,
 9                PETER W. HALL,
10                     Circuit Judges.
11       _______________________________________
12
13       BAO TAI JIANG, ALSO KNOWN AS JIANG BAO
14       TAI,
15                Petitioner,
16
17                         v.                                   09-2133-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
1    FOR PETITIONER:        Nathan Weill, New York, New York
2
3    FOR RESPONDENT:        Tony West, Assistant Attorney
4                           General, Jennifer Paisner Williams,
5                           Senior Litigation Counsel, Colette
6                           J. Winston, Attorney, Office of
7                           Immigration Litigation, Civil
8                           Division, United States Department
9                           of Justice, Washington, D.C.

10       UPON DUE CONSIDERATION of this petition for review of a

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

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

13   review is DENIED.

14       Petitioner Bao Tai Jiang, a native and citizen of the

15   People’s Republic of China, seeks review of the April 22,

16   2009 order of the BIA denying her motion to reopen.   In re

17   Bao Tai Jiang, No. A 095 716 702 (B.I.A. Apr. 22, 2009).      We

18   assume the parties’ familiarity with the underlying facts

19   and procedural history of the case.

20       As an initial matter, the Government asserts that we

21   lack jurisdiction to review the BIA’s refusal to reopen

22   Jiang’s proceedings sua sponte based on her assertion that

23   she received ineffective assistance from her prior counsel.

24   The Government is correct that we lack jurisdiction to

25   review the BIA’s exercise of its sua sponte authority.

26   Azmond Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006).

27   Here, however, despite the fact that Jiang herself requested

                                  2
1    that the BIA exercise its sua sponte authority, her motion

2    was best construed as seeking equitable tolling of the

3    filing deadline.     See Jie Chen v. Gonzales, 436 F.3d 76, 78-

4    79 (2d Cir. 2006).     We are not without jurisdiction to

5    review the BIA’s refusal to equitably toll the filing

6    deadline based on a claim of ineffective assistance of

7    counsel.   See, e.g., Iavorski v. INS, 232 F.3d 124, 134-35

8    (2d Cir. 2000).

9        Assuming this Court has such jurisdiction, we conclude

10   that the BIA did not abuse its discretion in rejecting

11   Jiang’s ineffective assistance of counsel claim.     See Cekic

12   v. INS, 435 F.3d 167, 170 (2d Cir. 2006).     Although

13   ineffective assistance of counsel may provide a basis for

14   equitably tolling the filing deadline for motions to reopen,

15   id. at 171, the alien is required to demonstrate that she

16   exercised “due diligence” in pursuing her claims during

17   “both the period of time before the ineffective assistance

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

19   from that point until the motion to reopen is filed,” see

20   Rashid v. Mukasey, 533 F.3d 127, 135 (2d Cir. 2008).        The

21   BIA reasonably found that Jiang failed to demonstrate that

22   she acted with due diligence in pursuing her ineffective

23   assistance of counsel claim “because of the almost 2 year

                                     3
1    delay between the Immigration Judge’s decision of January

2    30, 2007, and [Jiang’s] December 15, 2008, motion to

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

4    Cir. 2007).    Indeed, to the extent Jiang alleged that her

5    prior counsel failed to present one of her claims, she

6    should have become aware of that failure at the time of her

7    merits hearing and the IJ’s oral decision.    Because the BIA

8    did not abuse its discretion in declining to equitably toll

9    the filing deadline for Jiang’s motion to reopen, we need

10   not consider the BIA’s alternative finding that she was not

11   prejudiced by counsel’s purportedly ineffective assistance.

12   See Rashid, 533 F.3d at 135.

13       For the foregoing reasons, the petition for review is

14   DENIED.    Having completed our review, we DISMISS the

15   petitioner's pending motion for a stay of removal as moot.

16

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




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