                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-1-2008

Yang v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-5163




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-5163


                                  XINWANG YANG,

                                            Petitioner

                                           v.

                             ATTORNEY GENERAL OF
                              THE UNITED STATES,

                                            Respondent



                           Petition for Review of an Order of
                           the Board of Immigration Appeals
                                   (No. A72-993-689)


                    Submitted pursuant to Third Circuit LAR 34.1(a)
                                    May 13, 2008

                      Before: McKEE and ROTH, Circuit Judges,
                      and PADOVA,* Senior District Court Judge


                            (Opinion filed: October 1, 2008)




      *
       The Hon. John R. Padova, Senior District Judge of the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.

                                           1
                                         OPINION


McKEE, Circuit Judge.

       Xinwang Yang petitions for review of an order of the Board of Immigration

Appeals denying his motion to reopen. For the reasons that follow, we will deny the

petition.

                                             I.

       Because we write primarily for the parties, we need not recite the factual or

procedural history of this case except insofar as is helpful to our brief discussion.

       Nearly three years after the BIA denied Yang’s first motion to reopen, Yang filed a

second motion to reopen with the BIA based on a claim of ineffective assistance of prior

counsel. On November 29, 2006, the BIA denied that motion. The BIA explained that it

was denying the motion to reopen because Yang “has not explained his delay of several

years after we found that he had not complied with the requirements set forth in [Matter

of Lozada, supra,] . . . , and . . . has not yet met the other requirements.” AR 2. The BIA

also found that Yang failed to demonstrate the “due diligence” required for equitable

tolling of the filing deadline. Id. It further noted that the undated, unsworn statement

from Yang’s wife did not constitute “new, previously unavailable evidence to warrant

reopening.” Id. Therefore, the BIA denied Yang’s motion to reopen as untimely. Id.




                                              2
       This petition to review the denial of his motion to reopen followed.1

                                            II.

       Yang contends that the BIA abused its discretion in denying his motion to reopen.2

Our review is limited to issues related to the BIA’s November 29, 2006 denial of his

motion to reopen.

       Yang’s motion to reopen is governed by 8 C.F.R. § 1003.2(c), which provides, in

relevant part:

       Except as provided in paragraph (c)(3) of this section, a party may file only
       one motion to reopen deportation or exclusion proceedings (whether before
       the Board of the Immigration Judge) and that motion must be filed no later
       than 90 days after the date on which the final administrative decision was
       rendered in the proceeding sought to be reopened, or on or before
       September 30, 1996, whichever is later.

8 C.F.R. § 1003.2(c)(2).

       Here, the “final administrative decision” was issued on October 31, 2002.

Therefore, Yang had to move to reopen no later than 90 days from that date. Yet, his



       1
        “We review a final order of the BIA denying a motion to reopen for abuse of
discretion.” Mahmood v. Gonzales, 427 F.3d 248, 250 (3d Cir. 2005) (citation omitted).
“Review of the BIA’s legal conclusions is de novo, with appropriate deference to the
agency’s interpretation of the underlying statute in accordance with administrative law
principles.” Id. (citation omitted). “Findings of fact may not be disturbed is supported by
substantial evidence.” Id. (citations omitted).
       2
        Yang also argues that the IJ and the BIA erred in their adverse credibility
determinations. Yang’s Br. at 21-26. To the extent that Yang is challenging the final
order of deportation issued by the BIA on October 31, 2003, the petition for review is
dismissed for lack of jurisdiction because Yang did not seek review of that underlying
order. See Stone v. INS, 514 U.S. 386, 405 (1995).

                                             3
motion to reopen was not filed until almost three years later. Accordingly, it was clearly

untimely.3 However, Yang argues that ineffectiveness of prior counsel should equitably

toll the filing deadline.

         A substantiated claim of ineffective assistance of counsel can toll the deadline for

filing motions to reopen if the alien can demonstrate due diligence. See Mahmood v.

Gonzales, 427 F.3d 248, 252 (3d Cir. 2005); Iavorski v. INS, 232 F.3d 124, 235 (2d Cir.

2000).

         However, Yang’s motion neither acknowledges nor addresses the untimely nature

of his August 31, 2006, filing, and nothing in this record shows that Yang could not

reasonably have filed his motion to reopen well before that date.

         Yang argues for the first time in his petition for review that the BIA’s refusal to

toll the filing deadline due to his failure to exercise due diligence, is error “because he did

not know of his right to effective assistance of counsel . . . until he was advised [and] did

not realize that he was [a] victim of ineffective assistance of counsel until the time of

filing his Motion to Reopen.” Yang’s Br. at 19-20. He also attempts to argue that his

motion to reopen is consistent with congressional intent. Id. at 20-21. However, we lack

jurisdiction to consider the newly raised claims. See INA § 242(d)(1), 8 U.S.C. §

1252(d)(1) (requiring exhaustion of administrative remedies).


         3
        We note that this was Yang’s second motion to reopen. The regulations do
provide for certain exceptions to the time and numerical limitations for motions to reopen.
8 C.F.R. § 1003.2(c)(3). However, none of those exceptions apply here and Yang does
not claim that he qualifies for any of them.

                                                4
                                            III.

       Thus, because Yang failed to comply with the time limitation under 8 C.F.R. §

1003.2(c)(2) and has not demonstrated the required due diligence,4 the BIA did not abuse

its discretion in denying his untimely motion to reopen. Accordingly, we must deny the

petition for review without addressing the merits of his claim.




       4
       Because Yang has not demonstrated due diligence, it is not necessary for us to
address the merits of this ineffective assistance of counsel claim.

                                             5
