    14-2144
    Sun v. Lynch
                                                                                       BIA
                                                                               A087 789 443

                        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.

         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the
    23rd day of June, two thousand fifteen.

    PRESENT:
             JON O. NEWMAN,
             BARRINGTON D. PARKER,
             DEBRA ANN LIVINGSTON,
                  Circuit Judges.
    _____________________________________

    CHUAN HUI SUN,
             Petitioner,

                   v.                                                14-2144
                                                                     NAC

    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,*
             Respondent.
    _____________________________________




    *
     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.
FOR PETITIONER:                Yee Ling Poon; Deborah Niedermeyer,
                               Of Counsel, Law Office of Yee Ling
                               Poon, LLC, New York, New York.

FOR RESPONDENT:                Benjamin C. Mizer, Acting Assistant
                               Attorney General; Katharine E.
                               Clark, Senior Litigation Counsel;
                               Christina J. Martin, Trial Attorney,
                               Office of Immigration Litigation,
                               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 Chuan Hui Sun, a native and citizen of the

People’s Republic of China, seeks review of a May 29, 2014,

denying his motion to reopen his removal proceedings.         In re

Chuan Hui Sun, No. A087 789 443 (B.I.A. May 29, 2014).     We assume

the   parties’   familiarity    with   the   underlying   facts   and

procedural history in this case.

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

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

517 (2d Cir. 2006) (per curiam).       It is undisputed that Sun’s

motion to reopen was untimely filed because the agency’s final

order of removal was entered in May 2013 and Sun did not file

his motion to reopen until February 2014, well beyond the 90-day



                                   2
deadline.         See     8 U.S.C.   § 1229a(c)(7)(C)(i);       8 C.F.R.

§ 1003.2(c)(2).         The BIA did not err in declining to equitably

toll the time period based on Sun’s ineffective assistance of

counsel claim.

    In order to warrant equitable tolling, even assuming that

prior   counsel    was     ineffective,    an   alien   is   required   to

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

the period of time before the ineffective assistance of counsel

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

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

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

167, 170 (2d Cir. 2006).         The BIA did not err in finding that

Sun failed to demonstrate due diligence.           He did not take any

action to pursue reopening in the eight months that passed

between the BIA issuing his final order of removal and his

retention of current counsel in response to his arrest by the

Department of Homeland Security.          See Jian Hua Wang v. BIA, 508

F.3d 710, 715-16 (2d Cir. 2007).

    The BIA did not err in rejecting his argument that he was

unaware of his former counsel’s ineffective assistance because

of his limited English.        To the contrary, Sun was aware of the

issues that form the basis for his allegations of ineffective



                                     3
assistance because they were explicitly discussed with him

through an interpreter at his hearing before an immigration

judge.

      Accordingly, the BIA did not err in finding that Sun failed

to    demonstrate   due    diligence.             That     determination     was

dispositive of Sun’s ineffective assistance of counsel claim,

and we need not consider the BIA’s alternative dispositive

determination that Sun failed to demonstrate that he was

prejudiced by his former counsel’s purportedly ineffective

assistance.    See Rashid, 533 F.3d at 131; see also Rabiu v. INS,

41 F.3d 879, 882-83 (2d Cir. 1994).

      Nevertheless,       we    note       that    Sun’s     allegations      of

ineffective assistance did not impact several of the IJ’s

findings,   which   remain       as    valid      bases    for    the   agency’s

underlying adverse credibility determination.                      Furthermore,

as the BIA found, there is no merit to Sun’s assertion that he

was   prejudiced    (his       credibility        damaged)    by    his   former

counsel’s failure to submit his wife’s family planning booklet.

That booklet is inconsistent with Sun’s testimony, and thus

would have supported the adverse credibility determination.

See 8 U.S.C. § 1158(b)(1)(B)(iii) (providing that an adverse

credibility     determination          may        be      based    on     record



                                       4
inconsistencies); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162,

165-66 (2d Cir. 2008).        Therefore, as the IJ’s adverse

credibility    findings   remain       largely   untouched   by   Sun’s

allegations of ineffective assistance, the BIA did not err in

finding that Sun failed to establish that he was prejudiced as

required to succeed on his ineffective assistance claim.           See

Rabiu, 41 F.3d at 882-83.

    For the foregoing reasons, the petition for review is

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

that the Court previously granted in this petition is VACATED,

and 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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