         09-0440-ag
         Zheng v. Holder
                                                                                       BIA
                                                                               A098 776 131
                            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 3 rd day of February, two thousand ten.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                BARRINGTON D. PARKER,
 9                RICHARD C. WESLEY,
10                        Circuit Judges.
11       _________________________________________
12
13       XIANG YOU ZHENG, also known as
14       ZHENG XIANG YOU,
15                Petitioner,
16
17                         v.                                   09-0440-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _________________________________________
23
24       FOR PETITIONER:               Eric Zheng, New York, New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; M. Jocelyn Lopez Wright,
28                                     Senior Litigation Counsel; Anna
29                                     Nelson, Trial Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     Washington, D.C.
1        UPON DUE CONSIDERATION of this petition for review of a

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

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

4    is DENIED.

5        Petitioner Xiang You Zheng, a native and citizen of the

6    People’s Republic of China, seeks review of the January 5,

7    2009 order of the BIA, which denied his motion to reopen.

8    In re Xiang You Zheng, No. A098 776 131 (B.I.A. Jan. 5,

9    2009).   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 Kaur v. BIA, 413 F.3d 232, 233 (2d

13   Cir. 2005) (per curiam).   Here, the BIA did not abuse its

14   discretion in denying Zheng’s untimely motion to reopen.

15   See 8 C.F.R. § 1003.2(c)(2).

16       Although ineffective assistance of counsel may provide

17   a basis for equitably tolling the filing deadline for

18   motions to reopen, Cekic v. INS, 435 F.3d 167, 170-71 (2d

19   Cir. 2006), the alien is required to demonstrate that he

20   exercised “due diligence” in pursuing his claims during

21   “both the period of time before the ineffective assistance

                                    2
1    of counsel was or should have been discovered and the period

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

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

4        The BIA reasonably found that Zheng failed to

5    demonstrate that he acted with due diligence in pursuing his

6    ineffective assistance of counsel claim between March 2007,

7    when he discovered that his appeal was dismissed by the BIA,

8    and July 2008 when he filed his motion to reopen.    See Jian

9    Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007).     Because

10   the BIA did not abuse its discretion in declining to

11   equitably toll the time limitation for filing Zheng’s

12   motion, we need not consider the BIA’s alternative finding

13   that he failed to demonstrate compliance with the

14   requirements set forth in Matter of Lozada, 19 I. & N. Dec.

15   637 (BIA 1988).

16       Finally, we decline to consider Zheng’s unexhausted due

17   process arguments, Lin Zhong v. U.S. Dep’t of Justice, 480

18   F.3d 104, 107 n.1, 122 (2d Cir. 2007), and lack jurisdiction

19   to consider his challenge to the BIA’s refusal to reopen his

20   proceedings sua sponte, see Ali v. Gonzales, 448 F.3d 515,

21   518 (2d Cir. 2006).



                                  3
1        For the foregoing reasons, the petition for review is

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

3    removal that the Court previously granted in this petition

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

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

6    oral argument in this petition is DENIED in accordance with

7    Federal Rule of Appellate Procedure 34(a)(2), and Second

8    Circuit Local Rule 34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk
11
12
13




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