         08-3433-ag (L); 09-0929-ag (Con)
         Lu v. Holder
                                                                                        BIA
                                                                                A076 002 124
                                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 23 rd day of December, two thousand                nine.
 5
 6       PRESENT:
 7                ROGER J. MINER,
 8                JOHN M. WALKER, JR.,
 9                REENA RAGGI,
10                        Circuit Judges.
11       _________________________________________
12
13       XIU YUE LU,
14                Petitioner,
15
16                           v.                                 08-3433-ag (L);
17                                                              09-0929-ag (Con)
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _________________________________________
23
24       FOR PETITIONER:                     Theodore N. Cox, New York, New York.
25
26       FOR RESPONDENT:                     Tony West, Assistant Attorney
1                            General; Stephen J. Flynn, Assistant
2                            Director; James A. Hurley, Attorney,
3                            Office of Immigration Litigation,
4                            United States Department of Justice,
5                            Washington, D.C.
6
7        UPON DUE CONSIDERATION of these consolidated petitions

8    for review of two Board of Immigration Appeals (“BIA”)

9    decisions, it is hereby ORDERED, ADJUDGED, AND DECREED, that

10   the petitions for review are DENIED.

11       Petitioner Xiu Yue Lu, a native and citizen of the

12   People’s Republic of China, seeks review of the following:

13   (1) the July 3, 2008 order of the BIA denying her first

14   motion to reopen her removal proceedings, In re Xiu Yue Lu,

15   No. A076 002 124 (B.I.A. July 3, 2008); and (2) the February

16   26, 2009 order of the BIA denying her second motion to

17   reopen, In re Xiu Yue Lu, No. A076 002 124 (B.I.A. Feb. 26,

18   2009).   We assume the parties’ familiarity with the

19   underlying facts and procedural history in this case.

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

21   abuse of discretion.   See Kaur v. BIA, 413 F.3d 232, 233 (2d

22   Cir. 2005) (per curiam); Jin Ming Liu v. Gonzales, 439 F.3d

23   109, 111 (2d Cir. 2006) (per curium).   Upon reviewing the

24   record, we find that the BIA did not abuse its discretion in

25   denying Lu’s motions to reopen as untimely because Lu’s


                                   2
1    February and November 2008 motions were filed more than 90

2    days after the BIA entered a final order of removal in April

3    2002.     See 8 C.F.R. § 1003.2(c)(2) (providing that an alien

4    seeking to reopen proceedings may file one motion to reopen

5    no later than 90 days after the date on which the final

6    administrative decision was rendered).

7        Furthermore, the BIA did not abuse its discretion in

8    declining to equitably toll the time period for filing Lu’s

9    motions to reopen because she failed to demonstrate that she

10   exercised due diligence in pursuing her ineffective

11   assistance of counsel claims.       See Cekic v. INS, 435 F.3d

12   167, 170 (2d Cir. 2006).     In order to warrant equitable

13   tolling of the time period for filing a motion, even

14   assuming that a movant were to demonstrate that prior

15   counsel was ineffective, an alien is required to demonstrate

16   “[the] exercise [of] due diligence” in pursuit of her claims

17   during “both the period of time before the ineffective

18   assistance of counsel was or should have been discovered and

19   the period from that point until the motion to reopen is

20   filed.”     See Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir.

21   2008).

22       The record shows that Lu has failed to provide

23   sufficient explanation for her lack of action in both (1)

                                     3
1    the four years between the BIA’s April 8, 2002 decision

2    dismissing her appeal and the retention of second counsel in

3    2006 and (2) the time from that point until her first motion

4    to reopen on February 20, 2008.   As such, Lu has failed to

5    establish the exercise of due diligence in pursuit of her

6    claims during either the period of time before the

7    ineffective assistance of counsel was discovered or the

8    period from that point until the motion to reopen was filed.

9    Id.

10         For the foregoing reasons, these petitions for review

11   are DENIED.   As we have completed our review, any stay of

12   removal that the Court previously granted in this petition

13   is VACATED, and any pending motion for a stay of removal in

14   this petition is DISMISSED as moot. Any pending request for

15   oral argument in this petition is DENIED in accordance with

16   Federal Rule of Appellate Procedure 34(a)(2), and Second

17   Circuit Local Rule 34(b).

18                                FOR THE COURT:
19                                Catherine O’Hagan Wolfe, Clerk
20
21
22                                By:___________________________




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