         09-4528-ag
         Huang v. Holder
                                                                                       BIA
                                                                               A077 550 987
                            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 19 th day of July, two thousand ten.
 5
 6       PRESENT:
 7                REENA RAGGI,
 8                RICHARD C. WESLEY,
 9                GERARD E. LYNCH,
10                     Circuit Judges.
11       _______________________________________
12
13       MEI LING HUANG,
14                Petitioner,
15
16                         v.                                   09-4528-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., U.S. ATTORNEY
19       GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Nathan Weill, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General, James E. Grimes, Senior
27                                     Litigation Counsel, Kerry A. Monaco,
28                                     Trial Attorney, Office of
29                                     Immigration Litigation, Civil
30                                     Division, United States Department
31                                     of Justice, Washington, D.C.
1        UPON DUE CONSIDERATION of this petition for review of a

2    decision of the Board of Immigration Appeals (“BIA”), it is

3    hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

4    review is DENIED.

5        Petitioner Mei Ling Huang, a native and citizen of

6    China, seeks review of the October 5, 2009, order of the BIA

7    denying her motion to reopen.       In re Mei Ling Huang, No.

8    A 077 550 987 (B.I.A. Oct. 5, 2009).       We assume the parties’

9    familiarity with the underlying facts and procedural history

10   of the case.

11       The BIA did not abuse its discretion in denying Huang’s

12   untimely motion to reopen.     See Ali v. Gonzales, 448 F.3d

13   515, 517 (2d Cir. 2006).     The regulations provide that “a

14   party may file only one motion to reopen deportation or

15   exclusion proceedings . . . and that motion must be filed no

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

17   administrative decision was rendered in the proceeding

18   sought to be reopened, or on or before September 30, 1996,

19   whichever is later.”   8 C.F.R. § 1003.2(c)(2).      Huang does

20   not dispute that her March 2009 motion was untimely.

21   Rather, she argues that the BIA should have tolled the time

22   limitations to accommodate her ineffective assistance of

23   counsel claim.   See Cekic v. INS, 435 F.3d 167, 170 (2d Cir.

24   2006).


                                     2
1        In order to warrant equitable tolling, an alien is

2    required to demonstrate “due diligence” in pursuing her

3    claims during “both the period of time before the

4    ineffective assistance of counsel was or should have been

5    discovered and the period from that point until the motion

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

7    (2d Cir. 2008).   The BIA did not abuse its discretion in

8    declining to equitably toll the filing deadline for Huang’s

9    motion to reopen because, as it found, she failed to

10   demonstrate that she exercised due diligence in pursuing her

11   claim.   Id.; see Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d

12   Cir. 2007).   Huang argues that she exercised due diligence

13   because she filed her motion to reopen “as soon as she

14   learned that [her prior attorney’s conduct] was improper.”

15   However, to warrant equitable tolling, Huang was also

16   required to demonstrate that she exercised due diligence in

17   pursuing her claims during the period of time before the

18   ineffective assistance of counsel was discovered.     See

19   Rashid, 533 F.3d at 132.     Huang indicated that she “kn[ew]

20   immediately following [her May 2000 merits] hearing that

21   [her prior attorney’s] lack of preparation resulted in the

22   denial of her claims.”


                                     3
1        Moreover, Huang has never explained when she began

2    seeking to reopen her case, or who informed her that her

3    prior attorney’s conduct was potentially ineffective.      Under

4    these circumstances, we find no error in the BIA’s

5    conclusion that Huang did not exercise the requisite due

6    diligence.     See id.; Cekic, 435 F.3d at 170 (requiring an

7    affirmative demonstration of the exercise of due diligence).

8    Accordingly, we need not consider Huang’s arguments that she

9    substantially complied with Matter of Lozada and was

10   prejudiced by the allegedly ineffective assistance she

11   received.     See Cekic, 435 F.3d at 170.

12       For the foregoing reasons, the petition for review is

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

14   removal that the Court previously granted in this petition

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

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

17   oral argument in this petition is DENIED in accordance with

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

19   Circuit Local Rule 34.1(b).

20                                 FOR THE COURT:
21                                 Catherine O’Hagan Wolfe, Clerk
22
23
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