         13-2433
         Xu v. Lynch
                                                                                         BIA
                                                                                 A077 309 697
                         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 28th day of August, two thousand fifteen.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                DEBRA ANN LIVINGSTON,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       HUI XU,
14                     Petitioner,
15
16                     v.                                          13-2433
17                                                                 NAC
18       LORETTA E. LYNCH, UNITED STATES
19       ATTORNEY GENERAL,*
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                Charles Christophe, Christophe Law
24                                      Group, P.C, New York, New York.


                 *
              Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), Attorney General Loretta E. Lynch is automatically
         substituted for former Attorney General Eric H. Holder, Jr.,
         as the Respondent in this case.
 1
 2   FOR RESPONDENT:         Stuart F. Delery, Assistant Attorney
 3                           General; Song Park, Senior
 4                           Litigation Counsel; Sunah Lee, Trial
 5                           Attorney, Office of Immigration
 6                           Litigation, United States Department
 7                           of Justice, 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 in part and DISMISSED in part.

13       Petitioner Hui Xu, a native and citizen of the People’s

14   Republic of China, seeks review of the May 31, 2013,

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

16   Xu, No. A077 309 697 (B.I.A. May 31, 2013).     We assume the

17   parties’ familiarity with the underlying facts and

18   procedural history of the case.

19       The BIA’s denial of Xu’s motion to reopen was not an

20   abuse of discretion.   See Ali v. Gonzales, 448 F.3d 515, 517

21   (2d Cir. 2006) (per curiam).   Absent certain enumerated

22   circumstances which are not present here, an alien may

23   generally move to reopen no later than 90 days after the

24   date of the final administrative decision.    See 8 U.S.C.

25   § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).     There is no

26   dispute that Xu’s 2013 motion was untimely because his final


                                    2
 1   administrative order was issued in 2003.     8 U.S.C.

 2   § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).     In some

 3   instances, however, the agency may equitably toll the 90

 4   days if an alien demonstrates ineffective assistance of

 5   counsel and that he exercised due diligence in pursuing his

 6   claims during “both the period of time before the

 7   ineffective assistance of counsel was or should have been

 8   discovered and the period from that point until the motion

 9   to reopen [wa]s filed.”    Rashid v. Mukasey, 533 F.3d 127,

10   132 (2d Cir. 2008).

11       The BIA reasonably found that Xu’s ten-year delay in

12   raising ineffective assistance, a claim Xu admits was

13   apparent at the time of his 2002 hearing, did not reflect

14   due diligence.   See Jian Hua Wang v. B.I.A., 508 F.3d 710,

15   715 (2d Cir. 2007) (per curiam) (citing several cases

16   finding that a petitioner has failed to demonstrate due

17   diligence where he or she waited two years or longer to take

18   steps to reopen a proceeding).     Despite Xu’s assertion that

19   he lacked understanding of English and U.S. laws, he did not

20   explain why he did not simply seek new counsel to articulate

21   the claim for him.    The BIA therefore did not err in

22   declining to toll the filing deadline, and consequently did


                                    3
 1   not abuse its discretion in denying Xu’s motion to reopen as

 2   untimely.    See Rashid, 533 F.3d at 131-32; Ali, 448 F.3d at

 3   517.

 4          To the extent that Xu challenges the BIA’s denial of

 5   sua sponte reopening, we dismiss the petition for review

 6   because we lack jurisdiction to consider the discretionary

 7   determination that Xu did not demonstrate exceptional

 8   circumstances.    See Ali, 448 F.3d at 518.

 9          For the foregoing reasons, the petition for review is

10   DENIED in part and DISMISSED in part.    As we have completed

11   our review, any stay of removal that the Court previously

12   granted in this petition is VACATED, and any pending motion

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

14   Any pending request for oral argument in this petition is

15   DENIED in accordance with Federal Rule of Appellate

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

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




                                    4
