         09-1059-ag
         Yang v. Holder
                                                                                        BIA
                                                                                A072 484 965
                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.     CITATION TO SUMMARY ORDERS
     FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
     AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.     IN A BRIEF OR OTHER PAPER IN WHICH A
     LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
     ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
     “(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
     TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
     BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
     PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
     HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
     ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
     DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.


 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 7 th day of December, two thousand nine.
 5
 6       PRESENT:
 7                PIERRE N. LEVAL,
 8                JOSÉ A. CABRANES,
 9                ROBERT A. KATZMANN,
10                        Circuit Judges.
11       ______________________________________
12
13       CHAO YANG,
14                Petitioner,
15                                                              09-1059-ag
16                        v.                                    NAC
17
18       ERIC H. HOLDER JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:                Daniel B. Lundy, Barst & Mukamal
24                                      LLP, New York, New York.
1    FOR RESPONDENT:           Tony West, Assistant Attorney
2                              General; Carl H. McIntyre, Jr.,
3                              Assistant Director; Francis W.
4                              Fraser, Senior Litigation Counsel,
5                              Office of Immigration Litigation,
6                              United States Department of Justice,
7                              Washington, D.C.
8
9        UPON DUE CONSIDERATION of this petition for review of a

10   Board of Immigration Appeals (“BIA”) decision, it is hereby

11   ORDERED, ADJUDGED, AND DECREED that the petition for review

12   is DENIED.

13       Petitioner, Chao Yang, a native and citizen of the

14   People’s Republic of China, seeks review of a February 12,

15   2009 order of the BIA denying his third motion to reopen his

16   exclusion proceedings.     In re Chao Yang, No. A 072 484 965

17   (B.I.A. Feb. 12, 2009).     We assume the parties’ familiarity

18   with the underlying facts and procedural history of the

19   case.

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

21   abuse of discretion.     Ali v. Gonzales, 448 F.3d 515, 517 (2d

22   Cir. 2006).   We find that the BIA did not err in denying

23   Yang’s untimely and number-barred motion.     An alien may only

24   file one motion to reopen and must do so within 90 days of

25   the agency’s final administrative decision.     8 C.F.R.

26   § 1003.2(c)(2).   However, the deadline may be equitably

27   tolled to accommodate claims of ineffective assistance of


                                     2
1    counsel, so long as the movant has exercised “due diligence”

2    in vindicating his or her rights.   See Cekic v. INS, 435

3    F.3d 167, 171 (2d Cir. 2006).

4        The BIA properly found that because Yang did not

5    demonstrate due diligence in filing his second motion to

6    reopen, he could not satisfy the prerequisite for equitable

7    tolling in the instant motion, filed 10 years after the

8    decision he sought to reopen was issued.   We find the BIA

9    did not abuse its discretion in rejecting Yang’s ineffective

10   assistance of counsel claim, because even if Yang

11   demonstrated that he exercised due diligence in filling the

12   current motion, he would still have failed to demonstrate

13   that he exercised due diligence during the entire ten year

14   period he wishes to toll.   See Iavorski v. U.S. I.N.S.,     232

15   F.3d 124, 134 (2d Cir. 2000) (noting that “[t]his Court has

16   held that equitable tolling requires a party to pass with

17   reasonable diligence though the period it seeks to have

18   tolled.”) (internal quotation and alteration omitted).

19       Yang argues that the BIA abused its discretion by

20   declining to sua sponte reopen his proceedings or reissue

21   its decision.   However, this Court lacks jurisdiction to

22   review those arguments because such decisions are “entirely


                                     3
1    discretionary.”   See Ali, 448 F.3d at 518.   Similarly, this

2    Court lacks jurisdiction to review Yang’s challenge to the

3    agency’s underlying adverse credibility determination, as we

4    must confine our review to the denial of Yang’s third motion

5    to reopen and are precluded from reviewing any challenge to

6    the agency’s denial of his underlying claim for relief or

7    first motion to reopen.   See Ke Zhen Zhao v. U.S. Dep’t of

8    Justice, 265 F.3d 83, 90 (2d Cir. 2001).

9        For the foregoing reasons, the petition for review is

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

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

12   Any pending request for oral argument in this petition is

13   DENIED in accordance with Federal Rule of Appellate

14   Procedure 34(a)(2) and Second Circuit Local Rule 34(b).

15                               FOR THE COURT:
16                               Catherine O’Hagan Wolfe, Clerk
17
18
19                               By:___________________________




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