         08-6059-ag
         Zhang v. Holder
                                                                                       BIA
                                                                               A077 224 386
                            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 2 nd day of July, two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                      Chief Judge,
 9                JOHN M. WALKER, Jr.,
10                GERARD E. LYNCH,
11                      Circuit Judges.
12       _______________________________________
13
14       MING DI ZHANG,
15                Petitioner,
16
17                         v.                                   08-6059-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., U.S. ATTORNEY
20       GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:               Theodore N. Cox, New York, New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General, Greg D. Mack, Senior
28                                     Litigation Counsel, Genevieve Holm,
29                                     Attorney, Office of Immigration
30                                     Litigation, Civil Division, 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        Petitioner Ming Di Zhang, a native and citizen of the

6    People’s Republic of China, seeks review of the November 20,

7    2008, order of the BIA denying his motion to reopen.    In re

8    Ming Di Zhang, No. A 077 224 386 (B.I.A. Nov. 20, 2008).     We

9    assume the parties’ familiarity with the underlying facts

10   and procedural history of the case.

11       The BIA did not abuse its discretion in denying Zhang’s

12   untimely and number-barred motion to reopen.    See Ali v.

13   Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).    The regulations

14   provide that “a party may file only one motion to reopen

15   deportation or exclusion proceedings . . . and that motion

16   must be filed no later than 90 days after the date on which

17   the final administrative decision was rendered in the

18   proceeding sought to be reopened, or on or before September

19   30, 1996, whichever is later.”    8 C.F.R. § 1003.2(c)(2).

20   Zhang does not dispute that his June 2008 motion was

21   untimely and number-barred.   Rather, he argues that the BIA

22   should have tolled the time and number limitations to



                                   2
1    accommodate his ineffective assistance of counsel claim.

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

3        In order to warrant equitable tolling, an alien is

4    required to demonstrate “due diligence” in pursuing the

5    claim during “both the period of time before the ineffective

6    assistance of counsel was or should have been discovered and

7    the period from that point until the motion to reopen is

8    filed.”        See Rashid v. Mukasey, 533 F.3d 127, 135 (2d Cir.

9    2008).        The BIA did not abuse its discretion in declining to

10   equitably toll the filing deadline, as it found that Zhang

11   failed to demonstrate due diligence. 1      See Jian Hua Wang v.

12   BIA, 508 F.3d 710, 715 (2d Cir. 2007).        Zhang alleges that

13   his prior counsel failed to: (1) file a notice of appearance

14   with the BIA; (2) inform him that the BIA had issued a

15   decision regarding his first motion to reopen; and (3)

16   advise him that the BIA would mail him a copy of his

               1
             Zhang’s motion raised serious questions as to his
       credibility. First and foremost, he blamed one attorney
       for failing to inform him of the BIA’s denial of a motion
       he had hired that attorney to file. However, the record
       reflects that Zhang had hired a different attorney to
       file the motion in question, and that said attorney had
       indeed filed the motion. Zhang has never explained how
       it came to be that he retained two attorneys to file the
       same motion or why, if he ended his relationship with the
       first attorney, that attorney still filed a motion to
       reopen on his behalf. The BIA charitably called Zhang’s
       motions “inconsistent.”

                                        3
1    decision.     However, Zhang should have become aware of the

2    alleged ineffectiveness as of September 2007, because he

3    knew by then that the BIA had issued a decision regarding

4    his June 2006 motion.     Because the BIA did not abuse its

5    discretion in declining to equitably toll the filing

6    deadline for Zhang’s motion to reopen, we need not consider

7    his argument that he was prejudiced by the allegedly

8    ineffective assistance he received.     See Cekic, 435 F.3d at

9    170.

10          For the foregoing reasons, the petition for review is

11   DENIED.     As we have completed our review, any pending motion

12   for a stay of removal in this petition is DISMISSED as moot.

13   Any pending request for oral argument in this petition is

14   DENIED in accordance with Federal Rule of Appellate

15   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

16
17                                 FOR THE COURT:
18                                 Catherine O’Hagan Wolfe, Clerk
19
20
21




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