         12-4735 (L)
         Chen v. Holder
                                                                                       BIA
                                                                               A072 656 303
                           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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 9th day of May, two thousand fourteen.
 5
 6       PRESENT:
 7                PIERRE N. LEVAL,
 8                JOSÉ A. CABRANES,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       XUE YONG CHEN,
14                Petitioner,
15
16                        v.                                    12-4735 (L),
17                                                              13-1517 (Con)
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:               Alan Lee, New York, N.Y.
25
26       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
27                                     General; Ernesto H. Molina, Jr.,
28                                     Assistant Director; Jeffery R.
29                                     Leist, Trial Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     Washington, D.C.
 1       UPON DUE CONSIDERATION of these petitions for review of

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

 3   ORDERED, ADJUDGED, AND DECREED that the petitions for review

 4   are DENIED.

 5       Petitioner Xue Yong Chen, a native and citizen of

 6   China, seeks review of the November 13, 2012, and March 22,

 7   2013, orders of the BIA denying his motions to reopen and

 8   reconsider.   In re Xue Yong Chen, No. A072 565 303 (B.I.A.

 9   Mar. 22, 2013); id. (B.I.A. Nov. 13, 2012).   We assume the

10   parties’ familiarity with the underlying facts and

11   procedural history in this case.   Because Chen does not

12   challenge the denial of his motion to reconsider, we have

13   considered only the agency’s denial of his motions to

14   reopen, which we review for abuse of discretion.     See Ali v.

15   Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).

16       An alien may file one motion to reopen, generally no

17   later than 90 days after the date on which the final

18   administrative decision was rendered in the proceedings

19   sought to be reopened.   8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8

20   C.F.R. § 1003.2(c)(2).   Chen’s 2012 and 2013 motions were

21   untimely and number barred because he filed six motions to

22   reopen since being ordered removed in 2005.   See 8 U.S.C.

23   § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2).     However,

                                   2
 1   the agency may equitably toll the time limitation on a

 2   motion to reopen if an alien demonstrates ineffective

 3   assistance of counsel and that he exercised due diligence in

 4   pursuing that claim during “both the period of time before

 5   the ineffective assistance of counsel was or should have

 6   been discovered and the period from that point until the

 7   motion to reopen is filed.”     Rashid v. Mukasey, 533 F.3d

 8   127, 131 (2d Cir. 2008).

 9       Chen argues that he established ineffective assistance

10   of counsel in his 2013 motion due to his former counsel’s

11   failure to warn him of the consequences of filing a

12   frivolous asylum application.       However, the BIA reasonably

13   found that he did not exercise due diligence because he

14   should have discovered his attorney’s failure in 2000, when

15   the IJ found that he had filed a frivolous application, or

16   at least in the course of filing one of his six motions to

17   reopen.   See Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d

18   Cir. 2007) (“A petitioner who waits two years or longer to

19   take steps to reopen a proceedings ha[d] failed to

20   demonstrate due diligence”).    The BIA therefore did not

21   abuse its discretion in declining to equitably toll the time

22   limitation and in denying Chen’s 2013 motion to reopen as

23   untimely and number barred.     See Rashid, 533 F.3d at 131.

                                     3
 1       Chen also contends that the BIA declined to reopen sua

 2   sponte based on its erroneous determination that the IJ’s

 3   frivolousness finding validly rendered him ineligible for

 4   adjustment of status.     The BIA may, as a matter of

 5   discretion, reopen proceedings for exceptional

 6   circumstances, but we may not review such discretionary

 7   decisions unless the petitioner raises a colorable

 8   constitutional claim or question of law.      See 8 U.S.C.

 9   § 1252(a)(2)(B)(i), (D).     Although Chen raises questions of

10   law, arguing that the BIA misperceived his eligibility for

11   relief, his arguments lack merit.      See Mahmood v. Holder,

12   570 F.3d 466, 469-71 (2d Cir. 2009).

13       As the BIA concluded, the IJ’s finding that he filed a

14   frivolous asylum application barred him from adjustment of

15   status.    8 U.S.C. § 1158(d)(4)(6).   Chen became subject to

16   the frivolous filing bar when he reapplied for asylum in

17   1999.     See 8 C.F.R. § 1208.20 (applying frivolous filing

18   consequences to applications filed on or after April 1,

19   1997).    Contrary to Chen’s arguments, the 1999 application

20   was valid, despite his failure to sign the application a

21   second time before the IJ, and provided him sufficient

22   notice of the consequences of filing a frivolous application

23   as required by regulation.     See 8 U.S.C. § 1158(d)(4)(A)

                                     4
 1   (providing that “[a]t the time of filing an application for

 2   asylum, the Attorney General shall . . . advise the alien .

 3   . . of the consequences . . . of knowingly filing a

 4   frivolous application for asylum . . . .”); see also Pavlov

 5   v. Holder, 697 F.3d 616, 618 (7th Cir. 2012) (holding that

 6   the asylum application warning satisfies § 1158(d)(4)(A));

 7   Cheema v. Holder, 693 F.3d 1045, 1049 (9th Cir. 2012)

 8   (same); Ribas v. Mukasey, 545 F.3d 922, 929-30 (10th Cir.

 9   2008) (same).   Accordingly, the BIA did not err in declining

10   to sua sponte reopen.   Cf. Mahmood, 570 F.3d at 469-71.

11       For the foregoing reasons, the petitions for review are

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

13   removal that the Court previously granted in this petition

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

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

16   oral argument in this petition is DENIED in accordance with

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

18   Circuit Local Rule 34.1(b).

19                                 FOR THE COURT:
20                                 Catherine O’Hagan Wolfe, Clerk
21
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