     14-3747
     Gao v. Lynch
                                                                                       BIA
                                                                               A070 699 977

                         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   5th day of February , two thousand sixteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            REENA RAGGI,
 9            GERARD E. LYHCH,
10                 Circuit Judges.
11   _____________________________________
12
13   BI YU GAO,
14            Petitioner,
15
16                  v.                                               14-3747
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Theodore N. Cox, New York,
24                                       New York.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General; John S.
28                                       Hogan, Assistant Director; Todd J.
29                                       Cochran, Trial Attorney, Office of
1                               Immigration Litigation, United
2                               States Department of Justice,
3                               Washington, 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 Bi Yu Gao, a native and citizen of the People’s

10   Republic of China, seeks review of a September 11, 2014,

11   decision of the BIA denying her motion to reopen.   In re Bi Yu

12   Gao, No. A070 699 977 (B.I.A. Sept. 11, 2014).    We assume the

13   parties’ familiarity with the underlying facts and procedural

14   history in this case.

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

16   for abuse of discretion, see Ali v. Gonzales, 448 F.3d 515, 517

17   (2d Cir. 2006), and the BIA’s factual findings regarding country

18   conditions under the substantial evidence standard, see Jian

19   Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (per

20   curiam).   It is undisputed that Gao’s motion to reopen was

21   untimely filed and numerically barred because it was her third

22   motion filed more than ten years after the agency’s order of

23   removal became final in 2003.   See 8 U.S.C. § 1229a(c)(7)(A),

24   (C)(i); 8 C.F.R. § 1003.2(c)(2).


                                     2
1        The BIA did not err in declining to equitably toll the

2    period for Gao to file her motion based on her claim of

3    ineffective assistance of counsel.                In order to warrant

4    equitable    tolling,    even    assuming   that       prior    counsel    was

5    ineffective,      an   alien    is   required     to    demonstrate       “due

6    diligence” in pursuing her claim during “both the period of time

7    before the ineffective assistance of counsel was or should have

8    been discovered and the period from that point until the motion

9    to reopen is filed.”      Rashid v. Mukasey, 533 F.3d 127, 132 (2d

10   Cir. 2008); see also Cekic v. INS, 435 F.3d 167, 170 (2d Cir.

11   2006).

12       Gao failed to demonstrate due diligence.             She did not claim

13   to have taken any action to pursue reopening based on the alleged

14   ineffective assistance of her former counsel in the more than

15   eight years that passed between the BIA’s denial of her first

16   motion to reopen (for which she claimed counsel’s performance

17   was deficient) and her motion to reopen.           See Jian Hua Wang v.

18   BIA, 508 F.3d 710, 715-16 (2d Cir. 2007) (per curiam).

19       The     BIA   also   reasonably      found    that    Gao    failed    to

20   demonstrate a material change in conditions in China as required

21   to excuse the motion from the time and number limitations.                 See

22   8 U.S.C. § 1229a(c)(7)(C)(ii);              see         also       8 C.F.R.


                                          3
1    § 1003.2(c)(3).    The U.S. Department of State’s International

2    Religious    Freedom    Reports    demonstrate   that   the   Chinese

3    government has continuously viewed unfavorably and punished

4    unregistered Christian groups since before Gao’s underlying

5    hearing in 2002.       Therefore, the record does not compel the

6    conclusion that conditions in China have materially changed.

7    See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also Jian Hui Shao, 546

8    F.3d at 171.

9           Accordingly, because neither equitable tolling nor the

10   changed country conditions exception applied, the BIA did not

11   abuse its discretion in denying Gao’s motion to reopen as

12   untimely and number-barred.         See 8 U.S.C. § 1229a(c)(7)(A),

13   (C).

14          For the foregoing reasons, the petition for review is

15   DENIED.    As we have completed our review, the pending motion

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

17                                     FOR THE COURT:
18                                     Catherine O=Hagan Wolfe, Clerk




                                        4
