         08-1275-ag
         Wang v. Holder
                                                                                       BIA
                                                                               A077 009 251
                           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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 20 th day of April, two thousand ten.
 5
 6       PRESENT:
 7                BARRINGTON D. PARKER,
 8                RICHARD C. WESLEY,
 9                DEBRA ANN LIVINGSTON,
10                        Circuit Judges.
11       _________________________________________
12
13       XIU MEI WANG,
14                Petitioner,
15
16                        v.                                    08-1275-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL, 1
20                Respondent.
21       _________________________________________
22
23       FOR PETITIONER:               Tina Howe, New York, New York.
24
25       FOR RESPONDENT:               Gregory G. Katsas, Assistant

                 1
               Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), Attorney General Eric H. Holder, Jr., is
         automatically substituted for former Attorney General
         Michael B. Mukasey.
1                            Attorney General; Jennifer Paisner
2                            Williams, Senior Litigation Counsel;
3                            Charles E. Canter, Trial Attorney,
4                            Civil Division, Office of
5                            Immigration Litigation, United
6                            States Department of Justice,
7                            Washington, D.C.
8
9        UPON DUE CONSIDERATION of this petition for review of a

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

11   ORDERED, ADJUDGED, AND DECREED, that the petition for review

12   is DENIED.

13       Petitioner Xiu Mei Wang, a native and citizen of the

14   People’s Republic of China, seeks review of the February 20,

15   2008, order of the BIA, which denied her motion to reopen.

16   In re Xiu Mei Wang, No. A077 009 251 (B.I.A. Feb. 20, 2008).

17   We assume the parties’ familiarity with the underlying facts

18   and procedural history of the case.

19       We review the BIA’s denial of a motion to reopen for

20   abuse of discretion.   See Kaur v. BIA, 413 F.3d 232, 233 (2d

21   Cir. 2005) (per curiam).   Here, the BIA did not abuse its

22   discretion in denying Wang’s motion to reopen as untimely

23   because she filed it over four years after the BIA issued

24   its final order of removal.   See 8 C.F.R. § 1003.2(c)(2).

25       A. Ineffective Assistance of Counsel

26       In some circumstances, under the doctrine of equitable


                                   2
1    tolling, ineffective assistance of counsel can extend the

2    filing deadline for an alien’s motion to reopen.     See Cekic

3    v. INS, 435 F.3d 167, 170 (2d Cir. 2006).     In order to

4    warrant equitable tolling, however, the alien is required to

5    demonstrate that she exercised “due diligence” in pursuing

6    her claims during “both the period of time before the

7    ineffective assistance of counsel was or should have been

8    discovered and the period from that point until the motion

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

10   132 (2d Cir. 2008).    We have noted that “there is no period

11   of time which we can say is per se unreasonable, and,

12   therefore, disqualifies a petitioner from equitable

13   tolling–or, for that matter, any period of time that is per

14   se reasonable.”   Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d

15   Cir. 2007).

16       The BIA did not act arbitrarily or capriciously in

17   concluding that Wang failed to exercise due diligence,

18   because she filed her third motion to reopen more than three

19   years after she reasonably should have discovered that she

20   received ineffective assistance of counsel.     See id.     Wang

21   provided the BIA with no explanation as to why she waited

22   three years to seek reopening.     Accordingly, the BIA’s due



                                    3
1    diligence finding was not an abuse of discretion.     See id.

2    That finding alone was dispositive of Wang’s ineffective

3    assistance claim.    See Cekic, 435 F.3d at 171.

4           B. Changed Country Conditions

5           Wang further argues that the BIA erred by refusing to

6    reopen her proceedings based on alleged changed country

7    conditions in China.    See 8 U.S.C. § 1229a(c)(7)(C)(ii).

8    Specifically, she claims that the BIA failed to consider the

9    evidence she submitted.    However, we have rejected the

10   notion that the agency must “expressly parse or refute on

11   the record each individual argument or piece of evidence

12   offered by the petitioner,” Jian Hui Shao v. Mukasey, 546

13   F.3d 138, 169 (2d Cir. 2008) (internal quotation marks

14   omitted), and “presume that [the agency] has taken into

15   account all of the evidence before [it], unless the record

16   compellingly suggests otherwise,” Xiao Ji Chen v. U.S. Dep’t

17   of Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006).        Here, it

18   is clear that the BIA considered the evidence Wang

19   submitted–evidence it is asked to consider time and

20   again–and it did not err in denying her motion.     See

21   8 U.S.C. § 1229a(c)(7)(C)(ii); Jian Hui Shao, 546 F.3d at

22   169.

23          For the foregoing reasons, the petition for review is
                                    4
1    DENIED.   As we have completed our review, any stay of

2    removal that the Court previously granted in this petition

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

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

5    oral argument in these petitions is DENIED in accordance

6    with Federal Rule of Appellate Procedure 34(a)(2), and

7    Second Circuit Local Rule 34.1(b).

8                                FOR THE COURT:
9                                Catherine O’Hagan Wolfe, Clerk
10




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