    11-3771
    Lin v. Holder
                                                                                  BIA
                                                                          A072 782 548
                      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 Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 21st day of October, two thousand thirteen.

    PRESENT:
             JON O. NEWMAN,
             REENA RAGGI,
             RAYMOND J. LOHIER, JR.,
                  Circuit Judges.
    _____________________________________

    FENG LIN,
                    Petitioner,

                    v.                                     11-3771
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                Chunyu Jean Wang, Wang Law Office,
                                   Flushing, New York.

    FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
                                   Attorney General; Luis E. Perez,
                                   Senior Litigation Counsel; Jane T.
                                   Schaffner, Trial Attorney, Office of
                        Immigration Litigation, Civil
                        Division, United States Department
                        of Justice, Washington, 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 Feng Lin, a native and citizen of the People’s

Republic of China, seeks review of a September 7, 2011, order

of the BIA denying his motion to reopen.   In re Feng Lin, No.

A072 782 548 (B.I.A. Sep. 7, 2011).    We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

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

abuse of discretion.   Ali v. Gonzales, 448 F.3d 515, 517 (2d

Cir. 2006) (per curiam).

    There is no dispute that Lin’s motion, filed more than 15

years after the BIA’s final order, was untimely. See 8 U.S.C.

§ 1229a(c)(7)(C)(i) (setting 90-day deadline for motions to

reopen).   Lin argues that the BIA abused its discretion in

denying his motion to reopen based on ineffective assistance

of counsel, because it did not fully address whether his

former counsel was ineffective or whether he was prejudiced by


                              2
counsel’s conduct.       See Rabiu v. INS, 41 F.3d 879, 882 (2d

Cir. 1994). However, in order to warrant equitable tolling of

the statutory deadline on motions to reopen, such that his

motion    may   be   deemed   timely   filed,   Lin   was    required   to

demonstrate that he exercised due diligence in vindicating his

rights.    See Cekic v. INS, 435 F.3d 167, 171 (2d Cir. 2006).

    Here, the BIA did not abuse its discretion in determining

that Lin failed to exercise due diligence.            While Lin pursued

other relief after 1997, apart from contacting his lawyer

once, he did not show that he tried to learn the outcome of

his appeal between 1995 and 2006, when he hired new counsel.

Moreover, he did not explain why his newly retained counsel

did not file a motion to reopen until 2011.                 See Rashid v.

Mukasey, 533 F.3d 127, 132 (2d Cir. 2008) (holding that

petitioner failed to exercise due diligence when, after he

knew or should have known of his initial counsel’s alleged

ineffective assistance, he waited fourteen months to pursue

his case); Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir.

2007) (per curiam) (alien did not demonstrate due diligence

when his attorney waited several months after the receipt of

documents through FOIA to file the motion to reopen, years

already “having passed after the normal 90-day time limit to


                                   3
reopen had expired”).      Because the BIA reasonably concluded

that Lin did not establish due diligence, it was not required

to   address    whether   Lin’s   former   counsel’s   conduct   was

competent or prejudiced Lin.

     Lin additionally argues that the BIA should have reopened

his proceedings and reissued its 1995 decision, because he did

not receive a copy of that decision, which was served on his

attorney.      The BIA stated that it would not reopen Lin’s

proceedings because service on Lin’s attorney was proper.

While the BIA incorrectly stated in a footnote that Lin did

not request reissuance, we conclude that remanding for this

reason would be futile, both because service complied with

governing regulations and because the BIA’s decision not to

reopen the proceedings would justify declining to reissue the

decision.   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

315, 339 (2d Cir. 2006).

     When an alien requests reissuance based on a claim that

he did not receive proper notice of the BIA’s decision, the

operative question is whether the BIA sent the notice in

conformity with normal office procedures.        See Ping Chen v.

U.S. Att’y Gen., 502 F.3d 73, 75 (2d Cir. 2007) (per curiam).

The regulations in place in 1995 required that the BIA serve


                                  4
a copy of its decisions “upon the alien or party affected,”

and provided that such service shall be made on “the attorney

or    representative   of    record,      or   the   person   himself   if

unrepresented.”        8    C.F.R.   §§    3.1(f),    292.5(a)   (1995).

Accordingly, the BIA properly served its 1995 decision by

serving a copy on Lin’s attorney,1 and thus the time for Lin

to file a motion to reopen began to run.             See Ping Chen, 502

F.3d at 76-77 (“Once the BIA has performed its duty of serving

the order, the time for appeal and motions to reopen begins to

run, even if the order miscarries in the mail or the alien

does not receive it for some other reason that is not the

BIA’s fault.”).

       Lin also argues that the BIA abused its discretion in

summarily rejecting his argument relating to adjustment of

status on the ground that the BIA did not have jurisdiction to

adjudicate adjustment of status.               However, this argument


         1
           Lin argues that his case should be remanded based
     on this Court’s non-precedential decision in Xing An Dong
     v. Holder, 420 F. App’x 76 (2d Cir. 2011) (unpublished
     summary order). However, Xing An Dong is inapposite. In
     that case, we remanded for the BIA to address whether
     serving a copy of its decision on an attorney who had
     been expelled from practicing before the BIA was proper
     service under the regulations. Id. at 78. Here, in
     contrast, in 1995, Lin’s attorney, although employed by
     the same firm as the attorney at issue in Xing An Dong,
     was permitted to practice before the BIA.
                                     5
mischaracterizes    the   BIA’s   decision.        The   BIA   properly

concluded that Lin’s motion to reopen was untimely despite his

pending application for adjustment of status, which is not an

exception from the time limitation on motions to reopen.            See

Ali, 448 F.3d at 516-17; Matter of Yauri, 25 I. & N. Dec. 103,

105 (B.I.A. 2009). It also declined to reopen his proceedings

sua sponte, but that determination was not based on its

jurisdiction over Lin’s application for adjustment of status,

but   on   its   conclusion   that    his   case   did   not    present

exceptional circumstances.        We do not have jurisdiction to

review that “entirely discretionary” conclusion.               Ali, 448

F.3d at 518.

      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

Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

                     FOR THE COURT:
                     Catherine O’Hagan Wolfe, Clerk of Court




                                  6
