         11-2455-ag (L)                                                                  BIA
         Lin v. Holder                                                          A029 810 776
                                                                                A073 180 272

                           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 8th day of May, two thousand twelve.
 5
 6       PRESENT:
 7                JOSEPH M. McLAUGHLIN,
 8                PIERRE N. LEVAL,
 9                ROSEMARY S. POOLER,
10                       Circuit Judges.
11       _________________________________________
12
13       MIN LIN, AKA MUDA BIN MUDAH ALI,
14       XIAO FENG HUANG,
15                Petitioners,
16
17                        v.                                     11-2455-ag (L),
18                                                               11-2460-ag (Con)
19                                                               NAC
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23       _________________________________________
24
25       FOR PETITIONER:                Gary J. Yerman, New York, New York.
26
27       FOR RESPONDENT:                Tony West, Assistant Attorney
28                                      General; Anthony C. Payne, Senior
29                                      Litigation Counsel; Yedidya Cohen,
 1                             Trial Attorney, Office of
 2                             Immigration Litigation, United
 3                             States Department of Justice,
 4                             Washington, D.C.
 5

 6       UPON DUE CONSIDERATION of these petitions for review of

 7   a Board of Immigration Appeals (“BIA”) decision, it is

 8   hereby ORDERED, ADJUDGED, AND DECREED, that the petitions

 9   for review are DENIED.

10       Petitioners Min Lin and Xiao Feng Huang, natives and

11   citizens of the People’s Republic of China, seek review of

12   the May 27, 2011, decisions of the BIA denying their motion

13   to reopen.    In re Min Lin, No. A029 810 776, Xiao Feng

14   Huang, No. A073 180 272 (B.I.A. May 27, 2011).     We review

15   the BIA’s denial of a motion to reopen for abuse of

16   discretion.     See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.

17   2005) (per curiam).    We assume the parties’ familiarity with

18   the underlying facts and procedural history of the case.

19       The BIA’s denial of Petitioners’ motion to reopen as

20   untimely was not an abuse of discretion.     A motion to reopen

21   generally must be filed no later than 90 days after the date

22   on which the final administrative decision has been

23   rendered.     See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.

24   § 1003.2(c)(2).    Here, Petitioners’ March 2011 motion to


                                     2
 1   reopen was untimely as the BIA issued its final decision in

 2   July 2010.

 3       In some instances, an alien may toll the time period

 4   for filing a motion to reopen by demonstrating ineffective

 5   assistance of counsel.     See Cecik v. INS, 435 F.3d 167, 170

 6   (2d Cir. 2006).   In order to toll the time period, an

 7   applicant who files a motion to reopen based on ineffective

 8   assistance of counsel must, inter alia, demonstrate that

 9   competent counsel would have acted otherwise and that he

10   suffered actual prejudice as a result of his counsel’s poor

11   performance. See id. at 171.

12       In their motion to reopen, Petitioners argued that they

13   were prejudiced by their former counsel’s failure to timely

14   file a petition for review with this Court.    The BIA denied

15   the motion to reopen because it was untimely and because

16   they did not offer any evidence that a petition for review

17   of the BIA’s final order had any possibility of success. We

18   agree that Petitioners did not demonstrate the requisite

19   prejudice necessary to toll the time limitation.    The BIA’s

20   denial of Petitioners’ motion to reopen therefore was not an

21   abuse of discretion.     See Rabiu v. INS, 41 F.3d 879, 882 (2d

22   Cir. 1994) (in order to show “actual prejudice,” an


                                     3
 1   applicant “must make a prima facie showing that he would

 2   have been eligible for the relief [sought] and that he could

 3   have made a strong showing in support of his application”).

 4       Before this Court, Petitioners assert that they were

 5   prejudiced by their prior attorney’s failure to file a

 6   petition for review of the BIA’s prior decision, and the

 7   result of their case would have been different had the prior

 8   attorney not erred, because they had a well-founded fear of

 9   persecution in China based on their violation of China’s

10   family planning policy.   Petitioners also argue that,

11   independent from showing that they were prejudiced by their

12   former attorney’s actions, they have shown changed country

13   conditions sufficient to excuse the filing deadline on their

14   untimely motion to reopen.   Because Petitioners are raising

15   both of these arguments for the first time before this

16   Court, we decline to consider them.   See Lin Zhong v. U.S.

17   Dep’t of Justice, 480 F.3d 104, 119-20, 122 (2d Cir. 2007).

18   Moreover, we lack jurisdiction to review a decision of the

19   BIA declining to exercise its sua sponte authority to reopen

20   proceedings or reissue its prior decision.    See Ali v.

21   Gonzales, 448 F.3d 515, 518 (2d Cir. 2006).

22


                                   4
 1       For the foregoing reasons, the petitions for review are

 2   DENIED.    As we have completed our review, the pending

 3   motions for stays of removal in these petitions are

 4   DISMISSED as moot. Any pending request for oral argument in

 5   these petitions is DENIED in accordance with Federal Rule of

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

 7   34.1(b).

 8                                FOR THE COURT:
 9                                Catherine O’Hagan Wolfe, Clerk
10




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