NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 09-3440
                                       ___________

                                     QIAO ZHEN LIU,
                                                       Petitioner

                                               v.

                  ATTORNEY GENERAL OF THE UNITED STATES,
                                           Respondent

                       ____________________________________

                        On Petition for Review of an Order of the
                             Board of Immigration Appeals
                              (Agency No. A075-984-242)
                           Immigration Judge: Donald Ferlise
                       ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 19, 2010
            Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges

                               (Opinion filed: May 20, 2010)
                                      ___________

                                        OPINION
                                       ___________

PER CURIAM

       Petitioner seeks review of an order of the Board of Immigration Appeals (“BIA”)

denying her second motion to reopen. For the reasons that follow, we will deny in part

and dismiss in part the petition for review.
        Petitioner, Qiao Zhen Liu, is a native and citizen of China. She entered the

country without authorization in or around June 1995 and was placed into removal

proceedings. In response, she applied for asylum, withholding of removal, and protection

under the Convention Against Torture based on her political opposition to China’s family

planning policies. On August 8, 2001, the Immigration Judge (“IJ”) found her not to be

credible, concluded that her application was frivolous, and denied all of her requests for

relief. The IJ held that even assuming Liu was credible, she failed to establish past

persecution or a well-founded fear of future persecution. On appeal to the BIA, the same

attorney who represented Liu before the IJ, Ms. Wang, initially filed a brief on her behalf.

However, Liu then retained new counsel while the appeal was pending, and her new

counsel filed a second brief before the BIA which replaced the first. The BIA affirmed

the decision of the IJ without opinion on September 13, 2002.

        On December 12, 2002, Liu filed a motion to reconsider and reopen, seeking to

address some of the issues the IJ found damaging to her credibility.1 The BIA denied the

motion for reconsideration as untimely and denied the motion to reopen because the

documents she sought to submit were not sufficient to support her renewed applications

for relief.

        Approximately six years later, on January 8, 2009, Liu, through new counsel, filed



   1
    This motion was filed pro se. Liu alleges that she sought assistance from a firm she
believed was run by attorneys but which actually was not, and that they drafted the motion
but filed it pro se on her behalf and without her knowledge.

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a motion titled “Motion to Reopen Asylum Based Removal Hearing Sua Sponte or In The

Alternative Re-Issue Order Dismissing Appeal.” In it, she alleged that Ms. Wang

provided ineffective assistance by failing to inform her of her right to file a petition for

review before this Court from the BIA’s September 13, 2002 decision and that her right to

due process was violated by this failure. In order to remedy this defect, she requested that

the BIA reopen her proceedings or re-file its decision to allow her to timely appeal.

       The BIA denied the motion for several reasons. First, it concluded that the motion

was untimely and number barred. See 8 C.F.R. § 1003.2(c)(2) (permitting only one

motion to reopen which must be filed within 90 days of entry of final administrative order

of removal). Second, it found that Liu failed to meet the requirements set out in In re

Lozada, 19 I. & N. Dec. 637 (BIA 1988), for raising a claim of ineffective assistance of

counsel.2 In her motion, Liu stated that she believed that Ms. Wang suffered from a

mental illness and that her bar membership was in “Disability Inactive Status.” Liu

alleged that she was therefore unable to locate Ms. Wang and could not inform her of the

allegations against her or serve her with a copy of any disciplinary complaint Liu might

file. The Board found this explanation to be unreasonable, as Liu did not provide any

evidence to show that she made a bona fide effort to locate Ms. Wang or demonstrate that



   2
    Lozada requires: (1) an affidavit from the petitioner detailing the actions taken or not
taken by counsel; (2) proof that counsel was informed of the allegations and given an
opportunity to respond; and (3) a complaint filed with disciplinary authorities or a
reasonable explanation for the decision not to file a complaint. See 19 I. & N. Dec. at
639; see also Lu v. Ashcroft, 

, 132-34 (3d Cir. 2001).

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she suffered from a disability or mental illness during the course of her representation.

       Third, the BIA concluded that Liu was not entitled to equitable tolling as she failed

to demonstrate that she exercised due diligence in pursuing her claim. See Mahmood v.

Gonzales, 

, 252 (3d Cir. 2005) (holding that time to file motion to reopen is

subject to equitable tolling and that ineffective assistance of counsel can provide basis for

tolling if petitioner exercises diligence in pursuing claims). The BIA held that in waiting

nearly six years before filing her second motion to reopen and failing to provide any

explanation for that delay, Liu failed to act diligently and therefore was not entitled to

equitable tolling. Finally, the Board noted that in 2001, Liu retained new counsel to

represent her in her appeal to the BIA. Accordingly, Ms. Wang was not even the attorney

of record at the time the ineffective assistance of counsel allegedly occurred.

       For all of these reasons, the BIA held that the motion to reopen was time and

number barred, that Liu was not entitled to equitable tolling, and that it would not

exercise its discretion to grant her motion to reopen sua sponte. Liu timely filed the

instant petition for review.

       We have jurisdiction over this petition for review pursuant to 8 U.S.C. § 1252. We

review the BIA’s denial of a motion to reopen for abuse of discretion. See Liu v.

Attorney Gen., 

, 148 (3d Cir. 2009). Under this standard, we will uphold the

BIA’s decision unless it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft,

, 174 (3d Cir. 2002). We will affirm the BIA’s factual findings if they are



                                              4
supported by “‘reasonable, substantial, and probative evidence on the record considered

as a whole.’” Filja v. Gonzales, 

, 251 (3d Cir. 2006) (quoting INS v. Elias-

Zacarias, 

, 480 (1992)). We generally lack jurisdiction to review the BIA’s

decision not to exercise its discretion to sua sponte consider an untimely motion to

reopen. See Cruz v. Attorney Gen., 

, 250 (3d Cir. 2006).

       Petitioner’s motion to reopen was clearly not filed within the requisite ninety-day

period and the BIA therefore correctly determined that it was time barred. See 8 C.F.R. §

1003.2(c)(2). In her brief, Liu focuses on why, under the particular circumstances of this

case, she should be excused from strict compliance with Lozada. However, she fails to

address the BIA’s finding that she did not act diligently in pursuing her claim, nor does

she acknowledge that Ms. Wang had been replaced by a different attorney during her

appeal to the BIA. Because the BIA properly determined that Liu was not entitled to

equitable tolling on the basis of ineffective assistance of counsel for these reasons, Liu’s

motion was untimely and, therefore, the BIA acted well within its discretion in denying it.

       Next, Liu argues that the BIA abused its discretion in declining to sua sponte grant

her motion to reopen despite the exceptional circumstances of her case. As stated earlier,

we lack jurisdiction to review this claim. See 

.

       Based on the foregoing, we will deny in part and dismiss in part the petition for

review.




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