         11-92
         Lu v. Holder
                                                                                       BIA
                                                                               A078 198 952
                         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 9th day of January, two thousand fourteen.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                ROSEMARY S. POOLER,
 9                ROBERT D. SACK,
10                     Circuit Judges.
11       _____________________________________
12
13       QIGUANG LU, AKA QI GUANG LU,
14                Petitioner,
15
16                      v.                                      11-92
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Lee Ratner, Law Offices of Michael
24                                     Brown, New York, N.Y.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Susan K. Houser, Senior
28                                     Litigation Counsel; Christina J.
29                                     Martin, 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   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       Qiguang Lu, a native and citizen of the People’s

 6   Republic of China, seeks review of a December 29, 2010,

 7   decision of the BIA denying his motion to reopen.     In re

 8   Qiguang Lu, No. A078 198 952 (B.I.A. Dec. 29, 2010).      We

 9   assume the parties’ familiarity with the underlying facts

10   and procedural history of this case.

11       The applicable standards of review are well-

12   established.   See Jian Hui Shao v. Mukasey, 546 F.3d 138,

13   168-69 (2d Cir. 2008).     An alien may file only one motion to

14   reopen within 90 days of the agency’s final administrative

15   decision.   8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.

16   § 1003.2(c)(2).     Lu’s motion to reopen was indisputably

17   untimely and number-barred because it was filed more than

18   eight years after the agency’s final order of removal and it

19   was his third motion to reopen.

20       There are no time and numerical limitations for filing

21   a motion to reopen if it is “based on changed country

22   conditions arising in the country of nationality or the

23   country to which removal has been ordered, if such evidence

                                     2
 1   is material and was not available and would not have been

 2   discovered or presented at the previous proceeding.”

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

 4   As the BIA found, Lu’s activities in the United States did

 5   not constitute changed conditions in China.     See Li Yong

 6   Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d

 7   Cir. 2005).   Additionally, the BIA reasonably concluded that

 8   Lu failed to demonstrate material changed conditions in

 9   China since the time of his 2000 proceedings before the

10   immigration judge because the evidence he submitted

11   demonstrated that Falun Gong practitioners have been

12   continuously mistreated in China since the Chinese

13   government began its crackdown against that group in 1999.

14   See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.

15   § 1003.2(c)(3)(ii).     Moreover, the BIA reasonably relied on

16   the underlying adverse credibility determination to decline

17   to credit Lu’s individualized evidence that government

18   officials in China had discovered his activities in the

19   United States.   See Qin Wen Zheng v. Gonzales, 500 F.3d 143,

20   146-49 (2d Cir. 2007).     Accordingly, the BIA did not err in

21   finding that Lu failed to demonstrate material changed

22   country conditions excusing the untimely and number-barred

23   filing of his motion.


                                     3
 1       The BIA also did not err in declining to equitably toll

 2   the time period for filing the motion to reopen based on his

 3   ineffective assistance of counsel.      In order to warrant

 4   equitable tolling, even assuming that a movant demonstrated

 5   that prior counsel was ineffective, an alien is required to

 6   demonstrate “due diligence” in pursuing his claim during

 7   “both the period of time before the ineffective assistance

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

 9   from that point until the motion to reopen is filed.”

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

11   also Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006).      The

12   BIA did not err in finding that Lu failed to demonstrate

13   that he exercised due diligence because, as Lu admits in his

14   brief, he did not pursue his ineffective assistance of

15   counsel claim from 2003 to 2010.       See Jian Hua Wang v. BIA,

16   508 F.3d 710, 715 (2d Cir. 2007).

17       Finally, the BIA did not err in noting that Lu was not

18   eligible for an exception to the procedural limitations

19   applicable to his motion to reopen based on his purported

20   eligibility to adjust status.       See 8 U.S.C.

21   § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3); see also Matter

22   of Yauri, 25 I. & N. Dec. 103, 105 (B.I.A. 2009).


                                     4
1       For the foregoing reasons, the petition for review is

2   DENIED.   The pending motion for a stay of removal in this

3   petition is DISMISSED as moot.

4

5                               FOR THE COURT:
6                               Catherine O’Hagan Wolfe, Clerk




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