Filed: Jul. 19, 2010
Latest Update: Feb. 21, 2020
Summary: 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 “S
Summary: 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 “SU..
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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
24
4
