08-0200-ag
Wu v. Holder
                                                                               BIA
                                                                       A079-331-702
                    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.


     At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 10 th day of December, two thousand nine.

PRESENT:
         ROGER J. MINER,
         JOHN M. WALKER, JR.,
         REENA RAGGI,
                 Circuit Judges.
______________________________________

GUO GUANG WU
         Petitioner,
                                                        08-0200-ag
                   v.                                   NAC

ERIC H. HOLDER, JR., 1
         Respondent.
______________________________________


               1
          Pursuant to Federal Rule of Appellate Procedure
    43(c)(2), Attorney General Eric H. Holder, Jr., is
    automatically substituted for former Attorney General
    Michael B. Mukasey as respondent in this case.
FOR PETITIONER:               Robert       J.   Adinolfi,    New   York, New
                              York.

FOR RESPONDENT:               Tony West, Assistant Attorney General,
                              Civil Division; John S. Hogan, Senior
                              Litigation Counsel; Channah M. Farber,
                              Trial Attorney, Office of Immigration
                              Litigation, Civil Division, United
                              States    Department    of    Justice,
                              Washington, D.C.

    UPON DUE CONSIDERATION of this petition for review of a

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

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is DENIED.

    Petitioner Guo Guang Wu, a native and citizen of the

People’s Republic of China, seeks review of a December 13,

2007 order of the BIA denying his motion to reopen removal

proceedings.    In re Guo Guang Wu, No. A 079 331 702 (B.I.A.

Dec. 13, 2007).        We review the BIA’s denial of a motion to

reopen for abuse of discretion.                 Ali v. Gonzales, 448 F.3d

515, 517 (2d Cir. 2006).        In doing so, we assume the parties’

familiarity     with    the    facts        and   the   record     of   prior

proceedings, which we reference only as necessary to explain

our decision.

    In general, an alien may file only one motion to reopen

and must do so within 90 days of the final administrative

order of removal.      8 C.F.R. § 1003.2(c)(2).             There is no such

                                       2
time limitation, however, where the alien demonstrates the

existence     of    material    evidence      of   “changed     circumstances

arising in the country of nationality” and such evidence “was

not available and could not have been discovered or presented

at the previous hearing.” 2          8 C.F.R. § 1003.2(c)(3)(ii).

       The 90-day limitations period for motions to reopen also

may be equitably tolled to accommodate ineffective assistance

of counsel claims.          To prevail on such a claim, an alien must

demonstrate,        inter    alia,    that     the    alleged     ineffective

assistance prejudiced the outcome of his case.                   Rabiu v. INS,

41    F.3d   879,   882-83     (2d   Cir.    1994)    (“In   order   for   [the

petitioner] to show that his attorney’s failure . . . caused

him actual prejudice, he must make a prima facie showing that

he would have been eligible for the relief and that he could

have made a strong showing in support of his application.”);

see also Esposito v. INS, 987 F.2d 108, 111 (2d Cir. 1993)

(per curiam).

       Here, the BIA did not abuse its discretion in rejecting

Wu’s ineffective assistance of counsel claim because Wu failed

to    demonstrate     that     his   counsel’s       allegedly    ineffective


         2
           Although Wu alleged changed country conditions in
     his initial motion to reopen, he does not seek review of
     the BIA’s rejection of that claim.

                                       3
assistance prejudiced the outcome of his proceedings.                      See

Rabiu v. INS, 41 F.3d at 882-83; Esposito v. INS, 987 F.2d at

111.    The Immigration Judge’s decision to deny Wu’s claim for

asylum was premised on an adverse credibility finding and

certain material inconsistencies, infirmities, and omissions

in the relevant evidence.            As the BIA correctly concluded, Wu

has presented no evidence – apart from his own conclusory

assertions – in support of his motion to reopen explaining how

prior counsel’s improved performance would have helped his

case.

       Because      Wu’s     failure      to   demonstrate     prejudice    is

dispositive of his ineffective assistance claim, see Rabiu v.

INS,    41   F.3d   at     882-83,   we   need   not   reach   his   remaining

arguments.

       For the foregoing reasons, the petition for review is

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

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

Any pending request for oral argument in this petition is

DENIED in accordance with Federal Rule of Appellate Procedure




                                          4
34(a)(2), and Second Circuit Local Rule 34(b).



                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk


                           By:___________________________




                             5
