Filed: Jul. 02, 2010
Latest Update: Feb. 21, 2020
Summary: 08-6059-ag Zhang v. Holder BIA A077 224 386 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: 08-6059-ag Zhang v. Holder BIA A077 224 386 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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08-6059-ag
Zhang v. Holder
BIA
A077 224 386
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 2 nd day of July, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JOHN M. WALKER, Jr.,
10 GERARD E. LYNCH,
11 Circuit Judges.
12 _______________________________________
13
14 MING DI ZHANG,
15 Petitioner,
16
17 v. 08-6059-ag
18 NAC
19 ERIC H. HOLDER, JR., U.S. ATTORNEY
20 GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Theodore N. Cox, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General, Greg D. Mack, Senior
28 Litigation Counsel, Genevieve Holm,
29 Attorney, Office of Immigration
30 Litigation, Civil Division, United
31 States Department of Justice,
32 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 Ming Di Zhang, a native and citizen of the
6 People’s Republic of China, seeks review of the November 20,
7 2008, order of the BIA denying his motion to reopen. In re
8 Ming Di Zhang, No. A 077 224 386 (B.I.A. Nov. 20, 2008). We
9 assume the parties’ familiarity with the underlying facts
10 and procedural history of the case.
11 The BIA did not abuse its discretion in denying Zhang’s
12 untimely and number-barred motion to reopen. See Ali v.
13 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). The regulations
14 provide that “a party may file only one motion to reopen
15 deportation or exclusion proceedings . . . and that motion
16 must be filed no later than 90 days after the date on which
17 the final administrative decision was rendered in the
18 proceeding sought to be reopened, or on or before September
19 30, 1996, whichever is later.” 8 C.F.R. § 1003.2(c)(2).
20 Zhang does not dispute that his June 2008 motion was
21 untimely and number-barred. Rather, he argues that the BIA
22 should have tolled the time and number limitations to
2
1 accommodate his ineffective assistance of counsel claim.
2 See Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006).
3 In order to warrant equitable tolling, an alien is
4 required to demonstrate “due diligence” in pursuing the
5 claim during “both the period of time before the ineffective
6 assistance of counsel was or should have been discovered and
7 the period from that point until the motion to reopen is
8 filed.” See Rashid v. Mukasey,
533 F.3d 127, 135 (2d Cir.
9 2008). The BIA did not abuse its discretion in declining to
10 equitably toll the filing deadline, as it found that Zhang
11 failed to demonstrate due diligence. 1 See Jian Hua Wang v.
12 BIA,
508 F.3d 710, 715 (2d Cir. 2007). Zhang alleges that
13 his prior counsel failed to: (1) file a notice of appearance
14 with the BIA; (2) inform him that the BIA had issued a
15 decision regarding his first motion to reopen; and (3)
16 advise him that the BIA would mail him a copy of his
1
Zhang’s motion raised serious questions as to his
credibility. First and foremost, he blamed one attorney
for failing to inform him of the BIA’s denial of a motion
he had hired that attorney to file. However, the record
reflects that Zhang had hired a different attorney to
file the motion in question, and that said attorney had
indeed filed the motion. Zhang has never explained how
it came to be that he retained two attorneys to file the
same motion or why, if he ended his relationship with the
first attorney, that attorney still filed a motion to
reopen on his behalf. The BIA charitably called Zhang’s
motions “inconsistent.”
3
1 decision. However, Zhang should have become aware of the
2 alleged ineffectiveness as of September 2007, because he
3 knew by then that the BIA had issued a decision regarding
4 his June 2006 motion. Because the BIA did not abuse its
5 discretion in declining to equitably toll the filing
6 deadline for Zhang’s motion to reopen, we need not consider
7 his argument that he was prejudiced by the allegedly
8 ineffective assistance he received. See Cekic, 435 F.3d at
9 170.
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any pending motion
12 for a stay of removal in this petition is DISMISSED as moot.
13 Any pending request for oral argument in this petition is
14 DENIED in accordance with Federal Rule of Appellate
15 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
16
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
20
21
4
