09-2812-ag
Liu v. Holder
                                                                                BIA
                                                                       Balasquide, IJ
                                                                       A 077 927 830
                 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.


     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 1 st day of June,         two thousand ten.

PRESENT:
         JON O. NEWMAN,
         ROBERT D. SACK,
         REENA RAGGI,
            Circuit Judges.
______________________________________

XIU JUAN LIU,
         Petitioner,
                                                                   09-2812-ag
                v.                                                        NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
______________________________________
FOR PETITIONER:                Gary J. Yerman, New York, New York.
FOR RESPONDENT:                Tony West, Assistant Attorney General,
                               Civil Division; Keith I. McManus,
                               Senior Litigation Counsel; Sunah Lee,
                               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

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

      Petitioner, Xiu Jian Liu, a native and citizen of the

People’s Republic of China, seeks review of a June 17, 2009,

order of the BIA affirming Immigration Judge (“IJ”) Javier

Balasquide’s   December      20,    2007,   denial   of   her   motion    to

reopen.   In re Xiu Jian Liu, No. A 077 927 830 (B.I.A. June

17, 2009), aff’g No. A 077 927 830 (Immig. Ct. N.Y. City Dec.

20,   2007).   We   assume    the    parties’   familiarity      with    the

underlying facts and procedural history of the case.

      The agency did not abuse its discretion in denying Liu’s

untimely motion to reopen.         Ali v. Gonzales, 448 F.3d 515, 517

(2d Cir. 2006); see also 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R.

§ 1003.2(c)(2).     We have previously reviewed the agency’s

consideration of evidence similar to that which Liu submitted

and have found no error in its conclusion that such evidence

is insufficient to establish either material changed country

conditions or an alien’s prima facie eligibility for relief.

See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169-72 (2d Cir.

2008); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d

Cir. 2006).    Moreover, despite Liu’s argument, we are not

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compelled to conclude that the agency failed to adequately

consider the evidence she presented.             See Xiao Ji Chen v. U.S.

Dep’t    of   Justice,    471   F.3d    315,   337    n.17   (2d    Cir.   2006)

(holding that we “presume that [the agency] has taken into

account all of the evidence before [it], unless the record

compellingly suggests otherwise”).               That determination was

alone dispositive of Liu’s motion to the extent it was based

on the birth of her two U.S. citizen children.                     See 8 U.S.C.

§ 1229a(c)(7)(C)(ii).

       The BIA also did not abuse its discretion in finding that

Liu failed to exercise due diligence in pursuing her claim for

ineffective assistance of counsel.               Liu bore the burden of

demonstrating that she acted with due diligence.                   See Cekic v.

INS, 435 F.3d 167, 171 (2d Cir. 2006).                   In her motion to

reopen, she stated that she learned of her former attorney’s

failure to notify her of her hearing date on May 16, 2002.

However, she did not file her motion to reopen until November

2007, more than five years later.              See Wang v. BIA, 508 F.3d

710, 715 (2d Cir. 2007) (holding that the petitioner failed to

show    due   diligence   when   eight       months   elapsed      between   the

discovery of the ineffective assistance and the filing of a

motion to reopen); Cekic, 435 F.3d at 171-72 (holding that a

two year delay between the time petitioners learned of their

                                       -3-
removal order and filed a motion to reopen constituted a lack

of diligence); Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir.

2008)   (holding   that   petitioner    failed   to   demonstrate   due

diligence when he waited fourteen months after learning of the

ineffective assistance of counsel before contacting another

attorney).     Although Liu stated that she “consulted several

other lawyers,” she presented no evidence that this was so,

much    less   when   these   alleged     consultations     occurred.

Therefore, the agency’s finding that Liu failed to demonstrate

due diligence was not “arbitrary or capricious.”              Ke Zhen

Zhao, 265 F.3d at 93; Cekic, 435 F.3d at 171.

       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

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

                                FOR THE COURT:
                                Catherine O’Hagan Wolfe, Clerk




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