         10-1118-ag
         Dong v. Holder
                                                                                       BIA
                                                                               A075 776 847
                           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 21st day of April, two thousand eleven.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                DEBRA ANN LIVINGSTON,
10                DENNY CHIN,
11                     Circuit Judges.
12       _____________________________________
13
14       XING AN DONG, AKA XING EN DONG,
15                Petitioner,
16                                                              10-1118-ag
17                        v.                                    NAC
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:               Jan Allen Reiner, New York, NY.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Blair T. O’Connor,
28                                     Assistant Director; Joseph D. Hardy,
29                                     Trial Attorney, Office of
30                                     Immigration Litigation, Civil
31                                     Division, United States Department
32                                     of Justice, 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 in part and GRANTED in part.

 5       Petitioner, Xing An Dong, a native and citizen of the

 6   People’s Republic of China, seeks review of a February 26,

 7   2010, order of the BIA denying his motion to reopen his

 8   removal proceedings.   In re Xing An Dong, No. A075 776 847

 9   (B.I.A. Feb. 26, 2010).    We assume the parties’ familiarity

10   with the underlying facts and procedural history of the

11   case.

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

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

14   Cir. 2006).   An alien may only file one motion to reopen and

15   must do so within 90 days of the agency’s final

16   administrative decision.    8 C.F.R. § 1003.2(c)(2).   The

17   motion to reopen in this case was filed outside this period

18   as the BIA affirmed the removal order in 2002 and the motion

19   to reopen was not filed until 2009.

20       Dong argues, however, that the agency abused its

21   discretion in denying his motion to reopen based on an

22   ineffective assistance of counsel claim.    The deadline for


                                    2
 1   filing a motion to reopen may be equitably tolled to

 2   accommodate claims of ineffective assistance of counsel, so

 3   long as the movant has exercised “due diligence” in

 4   vindicating his or her rights.    See Cekic v. INS, 435 F.3d

 5   167, 171 (2d Cir. 2006).   Here, the BIA did not abuse its

 6   discretion in determining that Dong failed to exercise due

 7   diligence because, although Dong had knowledge of his final

 8   order of removal as early as October 2002, he waited over

 9   three years to obtain legal advice and a copy of his court

10   file, and waited roughly an additional three years to find a

11   different attorney to pursue the matter.     See Rashid v.

12   Mukasey, 533 F.3d 127, 132 (2d Cir. 2008) (holding that

13   petitioner failed to exercise due diligence when, after he

14   knew or should have known of his initial counsel’s alleged

15   ineffective assistance, he waited fourteen months to further

16   pursue his case); Jian Hua Wang v. BIA, 508 F.3d 710, 715

17   (2d Cir. 2007) (holding that waiting 8 months after the

18   receipt of documents through FOIA to file the motion to

19   reopen did not demonstrate due diligence).

20       Dong additionally argues that the BIA abused its

21   discretion in failing to reopen his removal proceedings

22   because he did not receive the BIA’s underlying decision due


                                   3
 1   to the BIA’s failure to serve proper notice.   Unlike motions

 2   to reopen/rescind an in absentia removal order, the

 3   operative question in reviewing the denial of reissuance

 4   where the alien alleged improper notice of a decision is not

 5   whether the petitioner received the agency’s notice, but

 6   whether the agency sent the notice in conformity with normal

 7   office procedures.   See Ping Chen v. U.S. Att’y Gen., 502

 8   F.3d 73, 75 (2d Cir. 2007).   The agency’s regulations

 9   require that a “decision of the Board shall be in writing

10   and . . . a copy shall be served upon the alien or party

11   affected,” 8 C.F.R. § 1003.1(f), and provide that such

12   service shall be given to “the attorney or representative of

13   record, or the person himself if unrepresented,” 8 C.F.R.

14   §§ 292.5(a), 1292.5(a).   See also Ping Chen, 502 F.3d at 76-

15   77 (“Once the BIA has performed its duty of serving the

16   order, the time for appeal and motions to reopen begins to

17   run, even if the order miscarries in the mail or the alien

18   does not receive it for some other reason that is not the

19   BIA’s fault.”).

20       In the present case, the BIA abused its discretion in

21   failing to address Dong’s argument that the BIA did not

22   properly send its decision to an appropriate party, when it


                                   4
 1   sent the decision to the address of the Porges Law Firm at a

 2   time when the BIA knew that Robert Porges had been expelled

 3   from practicing before the BIA.   Ke Zhen Zhao v. U.S. Dep’t

 4   of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (holding that

 5   “[a]n abuse of discretion may be found . . . where the

 6   [BIA’s] decision provides no rational explanation,

 7   inexplicably departs from established policies, is devoid of

 8   any reasoning, or contains only summary or conclusory

 9   statements; that is to say, where the Board has acted in an

10   arbitrary or capricious manner” (citations omitted)).

11       Contrary to the government’s contention, remand would

12   not be futile because we cannot confidently predict, see

13   Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir. 2009); Diallo

14   v. U.S. Dept. Of Justice, 548 F.3d 232, 235 (2d Cir. 2008),

15   how the BIA will decide whether its underlying decision was

16   sent to an “appropriate party” in a manner that satisfied

17   its obligations, and whether any failure in that regard

18   meant that the time limitation for filing a motion to reopen

19   did not commence, see Ping Chen, 502 F.3d at 76-77; 8 C.F.R.

20   §§ 1003.1(f), 1292.5(a).

21

22



                                  5
 1       For the foregoing reasons, the petition for review is

 2   DENIED in part and GRANTED in part, and remanded to the BIA

 3   for further proceedings consistent with this opinion.     As we

 4   have completed our review, any pending motion for a stay of

 5   removal in this petition is DENIED as moot.   Any pending

 6   request for oral argument in this petition is DENIED in

 7   accordance with Federal Rule of Appellate Procedure

 8   34(a)(2), and Second Circuit Local Rule 34.1(b).

 9

10                              FOR THE COURT:
11                              Catherine O’Hagan Wolfe, Clerk
12
13




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