     15-1856
     Lu v. Lynch
                                                                                       BIA
                                                                               A077 920 919

                        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 TO 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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   28th day of January, two thousand sixteen.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            DENNIS JACOBS,
 9            PIERRE N. LEVAL,
10                 Circuit Judges.
11   _____________________________________
12
13   MING LU,
14                 Petitioner,
15
16                 v.                                                15-1856
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Chunyu Jean Wang, Flushing, New
24                                       York.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General; Anthony
28                                       W. Norwood, Senior Litigation
29                                       Counsel; Siu P. Wong, Trial
30                                       Attorney, Office of Immigration
1                               Litigation, United States
2                               Department of Justice, Washington,
3                               D.C.
4
5        UPON DUE CONSIDERATION of this petition for review of a

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

7    ORDERED, ADJUDGED, AND DECREED that the petition for review is

8    DENIED.

9        Petitioner Ming Lu, a native and citizen of the People’s

10   Republic of China, seeks review of a June 5, 2015, decision of

11   the BIA denying his motion to reopen.    In re Ming Lu, No. A077

12   920 919 (B.I.A. June 5, 2015).          We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15       We have reviewed the BIA’s denial of Lu’s motion to reopen

16   for abuse of discretion, and its factual findings regarding

17   country conditions under the substantial evidence standard.

18   See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir.

19   2008).    It is undisputed that Lu’s 2015 motion to reopen was

20   untimely because it was filed more than twelve years after the

21   agency’s order of removal became final in 2002.    See 8 U.S.C.

22   § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).


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1        The BIA did not err in declining to equitably toll the time

2    to file based on Lu’s allegations of ineffective assistance of

3    counsel.   In order to warrant equitable tolling, even assuming

4    that prior counsel was ineffective, an alien is required to

5    demonstrate “due diligence” in pursuing his claim during “both

6    the period of time before the ineffective assistance of counsel

7    was or should have been discovered and the period from that point

8    until the motion to reopen is filed.”    Rashid v. Mukasey, 533

9    F.3d 127, 132 (2d Cir. 2008); see also Cekic v. INS, 435 F.3d

10   167, 170 (2d Cir. 2006).

11        Lu failed to demonstrate due diligence.         He did not

12   describe taking any action to pursue reopening based on the

13   alleged ineffective assistance of his former counsel in the

14   twelve years prior to being placed in immigration detention and

15   hiring his current attorney to file a motion to reopen.      See

16   Jian Hua Wang v. BIA, 508 F.3d 710, 715-16 (2d Cir. 2007).    Lu

17   faults the BIA for failing to identify when a reasonable person

18   in his circumstances would have been expected to discover the

19   ineffective assistance.    However, Lu was aware of all of the

20   issues underlying his ineffective assistance claim at the time

21   of his 2001 hearing before the IJ and thus should have discovered
                                    3
1    the ineffective assistance at some point prior to being taken

2    into custody in 2015.    See Rashid, 533 F.3d at 132-33 (“[E]ven

3    if [the petitioner] did not immediately realize . . . that his

4    counsel had been ineffective, due diligence required that he

5    follow up with his attorney after the DHS decision, and if he

6    received no response, to obtain new counsel, seek relief from

7    the agency on his own, or take other affirmative action.”); see

8    also Jian Hua Wang, 508 F.3d at 715.

9           Accordingly, the BIA did not err in finding that Lu failed

10   to demonstrate due diligence.        See Jian Hua Wang, 508 F.3d at

11   715.    That finding was dispositive of Lu’s motion insofar as

12   he sought reopening or equitable tolling based on ineffective

13   assistance.    See Rashid, 533 F.3d at 131.

14          The BIA also reasonably found that Lu failed to demonstrate

15   a material change in the enforcement of the family planning

16   policy in China since his 2001 hearing as required to excuse

17   his motion from the time limitation based on changed country

18   conditions.    See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also In re

19   S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA 2007) (“In determining

20   whether evidence accompanying a motion to reopen demonstrates

21   a material change in country conditions that would justify
                                      4
1    reopening,    [the   BIA]    compare[s]   the    evidence     of   country

2    conditions submitted with the motion to those that existed at

3    the time of the merits hearing below.”).         As the BIA found, the

4    U.S. Department of State reports demonstrate that the Chinese

5    government has used economic incentives to enforce the family

6    planning policy since the time of Lu’s hearing with only

7    isolated incidents of persecutory force reported.             See Jian Hui

8    Shao, 546 F.3d at 159-66.      Therefore, the record does not compel

9    the   conclusion     that   conditions    in   China   have    materially

10   changed.     See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also Jian Hui

11   Shao, 546 F.3d at 171.

12         Finally, Lu’s purported eligibility to adjust status did

13   not excuse the time limitation.        See 8 U.S.C. § 1229a(c)(7)(C);

14   8 C.F.R. § 1003.2(c); In re Yauri, 25 I. & N. Dec. 103, 105 (BIA

15   2009) (emphasizing “that untimely motions to reopen to pursue

16   an application for adjustment of status . . . do not fall within

17   any of the statutory or regulatory exceptions to the time limits

18   for motions to reopen before the Board”).         We lack jurisdiction

19   to review the BIA’s decision insofar as it declined to reopen

20   sua sponte based on the pending visa petition.           See Mahmood v.


                                        5
1    Holder, 570 F.3d 466, 469 (2d Cir. 2009); Ali v. Gonzales, 448

2    F.3d 515, 518 (2d Cir. 2006).

3         Accordingly, because Lu failed to establish any exception

4    to the time limitation, the BIA did not abuse its discretion

5    in   denying   his   motion   as    untimely.   See   8 U.S.C.

6    § 1229a(c)(7)(C).

7         For the foregoing reasons, the petition for review is

8    DENIED, Lu’s stay motion is DENIED as moot, and Lu’s sanction

9    motion is DENIED.    The forbearance policy does not go into

10   effect until a petitioner files a stay motion.     Any pending

11   request for oral argument in this petition is DENIED in

12   accordance with Federal Rule of Appellate Procedure 34(a)(2),

13   and Second Circuit Local Rule 34.1(b).

14                                 FOR THE COURT:
15                                 Catherine O’Hagan Wolfe, Clerk




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