         11-3811
         Wang v. Holder
                                                                                        BIA
                                                                               A076 506 266



                           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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 18th day of April, two thousand fourteen.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                ROSEMARY S. POOLER,
 9                BARRINGTON D. PARKER,
10                     Circuit Judges.
11       _____________________________________
12
13       JING JING WANG,
14                Petitioner,
15
16                        v.                                    11-3811
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Vlad Kuzmin, New York, New York.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; Stephen J. Flynn,
27                                     Assistant Director; James A. Hurley,
28                                     Attorney, Office of Immigration
29                                     Litigation, Civil Division, United
30                                     States Department of Justice,
31                                     Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   review is DENIED.

 5       Jing Jing Wang, a native and citizen of the People’s

 6   Republic of China, seeks review of an August 25, 2011, order

 7   of the BIA denying her second motion to reopen. In re Jing

 8   Jing Wang, No. A076 506 266 (B.I.A. Aug. 25, 2011).      We

 9   assume the parties’ familiarity with the underlying facts

10   and procedural history of this case.

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

12   abuse of discretion, mindful of the Supreme Court’s

13   admonition that such motions are “disfavored.”    Ali v.

14   Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (per curiam)

15   (citing INS v. Doherty, 502 U.S. 314, 322-23 (1992)).         There

16   is no dispute that Wang’s motion was time- and number-

17   barred.   See 8 C.F.R. § 1003.2(c)(2); see also 8 U.S.C.

18   § 1229a(c)(7)(A), (C)(i).   In addition, Wang does not

19   challenge the BIA’s finding that it was precluded from

20   considering her application for asylum included with her

21   untimely 2011 motion to reopen because she did not

22   demonstrate changed conditions arising in China since the

23   time of her 2001 merits hearing.   See 8 U.S.C.

24   § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).

                                   2
 1       Wang argues that the time limitation on her motion to

 2   reopen should be equitably tolled – to allow her to apply

 3   for adjustment of status based on the approved immigrant

 4   petition filed by her United States citizen husband –

 5   because of the ineffective assistance of her attorney before

 6   the immigration judge (“IJ”) and on appeal before the BIA.

 7       While untimely motions to reopen may receive the

 8   benefit of equitable tolling of the filing deadline, the

 9   alien must demonstrate, inter alia, that she exercised due

10   diligence in pursuing her case during the period in which

11   she seeks to toll.    Jin Bo Zhao v. INS, 452 F.3d 154, 156-

12   159 (2d Cir. 2006) (per curiam).   Wang argues that she

13   complied with Matter of Lozada, 19 I&N Dec. 637 (B.I.A.

14   1988), by filing a disciplinary complaint and sending it to

15   her prior attorney.   However, an alien is required to

16   demonstrate due diligence in pursuing her ineffective

17   assistance claim “during the entire period [s]he seeks to

18   toll,” including “the period of time before the ineffective

19   assistance of counsel was or should have been discovered and

20   the period of time from that point until the motion to

21   reopen has been filed.”    Rashid v. Mukasey, 533 F.3d 127,

22   132 (2d Cir. 2008).

23       Although Wang’s brief fails to mention the specific

24   date that she actually discovered her prior counsel’s

                                    3
 1   alleged ineffective assistance, she reasonably should have

 2   discovered it when the IJ denied her relief in 2001, or at

 3   the latest in 2003, when the BIA denied her appeal.     Id.

 4   Moreover, Wang retained a new attorney in September 2007,

 5   which terminated the tolling of the time limitation for her

 6   2011 motion to reopen.   See Leorna v. U.S. Dep’t of State,

 7   105 F.3d 548, 551 (9th Cir. 1997).    In failing to file the

 8   motion for 8 years, Wang failed to demonstrate due diligence

 9   and that limitation on her motion to reopen should be

10   equitably tolled.   See Jian Hua Wang v. BIA, 508 F.3d 710,

11   715-16 (2d Cir. 2007) (per curiam) (finding petitioner who

12   waited eight months to file motion to reopen after

13   discovering ineffective assistance of former counsel did not

14   demonstrate due diligence).    Accordingly, the BIA did not

15   abuse its discretion in denying her motion to reopen as both

16   untimely and number-barred.

17       For the foregoing reasons, the petition for review is

18   DENIED.

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




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