09-3664-ag
Jin v. Holder
                                                                                BIA
                                                                        A098 432 336
                  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.


     At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 18 th day of August, two thousand ten.

PRESENT:
         DENNIS JACOBS,
              Chief Judge,
         JON O. NEWMAN,
         DENNY CHIN,
             Circuit Judges.
_______________________________________

HUA JIN,
                Petitioner,

                 v.                                                09-3664-ag
                                                                          NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
_________________________________________

FOR PETITIONER:                Hua Jin, pro se, Monterey Park, CA.

FOR RESPONDENT:                Tony West, Assistant Attorney General;
                               Daniel E. Goldman, Senior Litigation
                               Counsel;    Theo    Nickerson,   Trial
                               Attorney,    Office   of   Immigration
                               Litigation, United States Department
                               of Justice, Washington, D.C.
       UPON DUE CONSIDERATION of this petition for review of a

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

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

is DENIED.

       Petitioner Hua Jin, a native and citizen of China, seeks

review of an August 11, 2009 order of the BIA denying her

motion to reopen.         In re Hua Jin, No. A098 432 336 (B.I.A.

Aug. 11, 2009).         We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

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

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

Cir.    2005)    (per    curiam).       An    alien   seeking    to   reopen

proceedings may file one motion to reopen no later than 90

days after the date on which the final administrative decision

was rendered.       See 8 C.F.R. § 1003.2(c)(2).             The alien must

demonstrate that the evidence offered in support of the motion

was    not   available    and   could   not    have   been   discovered    or

presented at the former hearing.              Id.

       Here, the BIA reasonably denied Jin’s motion to reopen

because she failed to demonstrate that the evidence of her

former       counsel’s     alleged      ineffective      assistance       was

unavailable or could not have been presented at her previous

hearing.      Id.   Rather, that evidence was available at her

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removal proceedings, during which Jin admitted that she lied

under oath at her bond proceeding upon the advice of her prior

counsel and documents from the bond hearing were admitted into

the record.     Accordingly, as the BIA reasonably noted, Jin

could have pursued an ineffective assistance of counsel claim

either before the IJ in a motion to reopen or before the BIA.

Thus, the BIA did not err in denying her motion because she

failed to provide new, previously unavailable evidence.               To

the   extent   Jin   now   asserts    an   ineffective   assistance   of

counsel claim against her second attorney, she failed to raise

that claim with the agency.           Thus, the claim is unexhausted

and we lack jurisdiction to review it.            Ling Zhong v. U.S.

Dep’t of Justice, 480 F.3d 104, 107 (2d Cir. 2007).

      For the foregoing reasons, the petition for review is

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

that the Court previously granted in this petition is VACATED,

and any pending motion for a stay of removal in this petition

is DISMISSED as moot. Any pending request for oral argument in

this petition is DENIED in accordance with Federal Rule of

Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34(b).

                                 FOR THE COURT:
                                 Catherine O’Hagan Wolfe, Clerk




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