Filed: Feb. 23, 2011
Latest Update: Feb. 22, 2020
Summary: 10-1534-ag Qu v. Holder BIA A098 420 340 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 “SUMM
Summary: 10-1534-ag Qu v. Holder BIA A098 420 340 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 “SUMMA..
More
10-1534-ag
Qu v. Holder
BIA
A098 420 340
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 23rd day of February, two thousand eleven.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 BARRINGTON D. PARKER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 JIE MIN QU, ALSO KNOWN AS JIEMIN QU
14 ZHOU FAN,
15 Petitioner,
16
17 v. 10-1534-ag
18 NAC
19
20 ERIC H. HOLDER, JR., UNITED STATES ATTORNEY
21 GENERAL,
22 Respondent.
23 _______________________________________
24
25 FOR PETITIONER: Gary J. Yerman, New York, N.Y.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Daniel E. Goldman, Senior
29 Litigation Counsel; Matthew A.
30 Spurlock, Trial Attorney, Office of
31 Immigration Litigation, Civil
32 Division, United States Department
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 Jie Min Qu, a native and citizen of the People’s
6 Republic of China, seeks review of a March 31, 2010, order
7 of the BIA denying her motion to reopen her removal
8 proceedings. In re Jie Min Qu, No. A098 420 340 (B.I.A.
9 A.K. Marsh. 31, 2010). We assume the parties’ familiarity with the
10 underlying facts and procedural history of the case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Ali v. Gonzales,
448 F.3d 515, 517
13 (2d Cir. 2006). An alien who has been ordered removed may
14 file one motion to reopen, but must do so within 90 days of
15 the final administrative decision. 8 U.S.C. §
16 1229a(c)(7)(c)(1). Here, the BIA properly denied Qu’s motion
17 to reopen as untimely and number-barred, as it was her
18 second motion to reopen and was filed more than three years
19 after her July 2006 final order of removal. See
id. §
20 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). Moreover, the BIA
21 reasonably determined that Qu failed to satisfy an exception
22 to the time and number bars based either on ineffective
23 assistance of counsel or changed country conditions.
2
1 I. Ineffective Assistance of Counsel
2 Under the doctrine of equitable tolling, ineffective
3 assistance of counsel can extend the filing deadline for an
4 alien’s motion to reopen. See Cekic v. INS, 435 F.3d 167,
5 170 (2d Cir. 2006). In order to warrant equitable tolling,
6 however, the alien is required to demonstrate that she
7 exercised “due diligence” in pursuing her claims during
8 “both the period of time before the ineffective assistance
9 of counsel was or should have been discovered and the period
10 from that point until the motion to reopen is filed.”
11 Rashid v. Mukasey,
533 F.3d 127, 132 (2d Cir. 2008).
12 The BIA did not act arbitrarily or capriciously in
13 concluding that Qu failed to exercise due diligence because
14 she filed her second motion to reopen more than three years
15 after she reasonably should have discovered that she
16 received ineffective assistance of counsel. See Jian Hua
17 Wang v. BIA,
508 F.3d 710, 715 (2d Cir. 2007). Indeed, Qu
18 concedes that she was aware of her prior counsel’s
19 fraudulent practices at the time of the IJ’s decision.
20 Because the BIA did not abuse its discretion in finding a
21 lack of due diligence, we need not reach the merits of the
22 underlying ineffective assistance claim. See Cekic,
435
23 F.3d at 170.
3
1 II. Changed Country Conditions
2 The agency also reasonably found that Qu’s motion did
3 not qualify for the changed country conditions exception to
4 the time and numerical limitations. See 8 C.F.R.
5 § 1003.2(c)(3)(ii). The evidence Qu submitted was similar
6 to that which the BIA addressed in Matter of J-W-S-, 24 I. &
7 N. Dec. 185 (B.I.A. 2007). We have previously reviewed, and
8 found no error in, the BIA’s analysis in that case. Jian
9 Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008).
10 Moreover, given the BIA’s explicit references to the
11 documentation submitted with the motion to reopen, a
12 reasonable fact-finder would not be compelled to conclude
13 that the BIA ignored any material evidence. See Wei Guang
14 Wang v. BIA,
437 F.3d 270, 275 (2d Cir. 2006), see also Xiao
15 Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 337 n.17 (2d
16 Cir. 2006) (presuming that the agency “has taken into
17 account all of the evidence before [it], unless the record
18 compellingly suggests otherwise”).
19 Additionally, contrary to Qu’s argument, the BIA did
20 not err in giving diminished weight to both her affidavit
21 and the evidence she submitted relating to the sterilization
22 of two individuals from her home province. See Xiao Ji
23
Chen, 471 F.3d at 342 (finding that the weight afforded to
4
1 the applicant’s evidence in immigration proceedings lies
2 largely within the discretion of the agency). The BIA also
3 did not err in finding that the evidence relating to the
4 sterilization of two individuals from her home province was
5 not material because it did not detail the forced
6 sterilizations of similarly situated individuals--namely,
7 those who gave birth to two children outside of China. See
8 Jian Hui Shao, 546 F.3d at 160-61. Accordingly, because Qu
9 failed to demonstrate a material change in country
10 conditions, the BIA did not abuse its discretion in denying
11 her motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(ii).
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
5
