                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-10-2007

Jiang v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4682




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DLD-80                                                        NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 06-4682


                                     CHAO JIANG,
                                               Petitioner

                                            v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                       Respondent


                           On Petition for Review of an Order
                          of the Board of Immigration Appeals
                                (Agency No. 76-095-006)


     Submitted For Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                               December 21, 2006


                   Before: Barry, Ambro and Fisher, Circuit Judges.

                                (Filed: January 10, 2007)


                                        OPINION


PER CURIAM

      Chao Jiang, a native and citizen of China, petitions for review of an order of the

Board of Immigration Appeals (BIA) denying his motion to reopen his removal


                                            1
proceedings. The Government moves for a summary affirmance of the BIA’s order. We

will grant the Government’s motion and deny the petition for review.

       In 1998, Jiang entered the United States and filed an application for asylum and

withholding of removal based on his wife’s sterilization in China. An individual hearing

was scheduled for December 1999, but Jiang and his former attorney arrived more than

two hours late for this hearing. The Immigration Judge ordered Jiang’s removal from the

United States because of Jiang’s failure to appear at the hearing. Jiang filed a motion to

reopen with the IJ, but that request was denied. In 2001, the BIA affirmed the denial of

the motion to reopen, reasoning that Jiang had failed to demonstrate that his failure to

appear was because of exceptional circumstances.

       More than five years later, Jiang has filed another motion to reopen with the BIA

contending that he should benefit from equitable tolling because he has received

ineffective assistance of counsel and is prima facie eligible for asylum. In October 2006,

the BIA denied the motion to reopen, concluding the motion had been filed out of time

and Jiang had failed to exercise due diligence.1 The BIA determined that Jiang should

have discovered the ineffective assistance of his former counsel when the Immigration

Judge first denied the motion to reopen, and that this ineffectiveness should have been

even “more evident” when the BIA dismissed Jiang’s appeal in 2001. Jiang now petitions


   1
      Although Jiang acknowledged in his second motion to reopen that it was outside
both the time and numerical limits set for such motions, the BIA did not address the
question of whether the motion was outside the numerical limits. The parties do not raise
this issue on appeal, and therefore we will not address the question.
                                             2
this Court for review of this decision and moves for a stay of removal.

       We review a final order of the BIA denying a motion to reopen for abuse of

discretion. Mahmood v. Gonzales, 427 F.3d 248, 250 (3d Cir. 2005). Generally, a

motion to reopen must be filed before the BIA no later than 90 days after the date on

which the final administrative decision was rendered in the proceeding sought to be

reopened. 8 C.F.R. § 1003.2(c)(2). The deadline for filing a motion to reopen may be

equitably tolled by a showing of ineffective assistance of counsel; however, the alien

must show that he has exercised due diligence in pursing his claim. See Mahmood, 427

F.3d at 252-53.

       Here, Jiang allowed more than five years to elapse before filing a second motion to

reopen. On appeal, Jiang attempts to justify this delay based on his former counsel’s

alleged failure to inform Jiang about the rationale for the Immigration Judge’s initial

removal order. Jiang also contends that he was not aware of his former counsel’s

negligence until Jiang obtained a full copy of the record through the Freedom of

Information Act (FOIA). Even if true, these allegations do not show that Jiang exercised

due diligence in pursuing his claim. The BIA affirmed the IJ’s denial of Jiang’s initial

motion to reopen in 2001. However, Jiang did not request a copy of the record under

FOIA until years later. Under these circumstances, we conclude that the BIA did not

abuse its discretion in denying Jiang’s motion to reopen.

       Because this appeal does not raise a substantial question, the Government’s motion

for summary affirmance is granted. We will deny the petition for review. Jiang’s motion

                                             3
for a stay of removal is denied.
