Filed: Jun. 02, 2011
Latest Update: Feb. 22, 2020
Summary: 10-1004-ag Zhang v. Holder BIA A077 047 520 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: 10-1004-ag Zhang v. Holder BIA A077 047 520 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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10-1004-ag
Zhang v. Holder
BIA
A077 047 520
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 2nd day of June, two thousand eleven.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 PIERRE N. LEVAL,
9 ROSEMARY S. POOLER,
10 Circuit Judges.
11 _________________________________________
12
13 QUI XIA ZHANG, AKA AHHONGMS TAN,
14 AKA QIU XIA ZHANG,
15 Petitioner,
16
17 v. 10-1004-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _________________________________________
23
24 FOR PETITIONER: Lee Ratner, Law Offices of Michael
25 Brown, New York, New York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Richard M. Evans, Assistant
29 Director; Sharon M. Clay, Trial
30 Attorney, Office of Immigration
31 Litigation, United States Department
32 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DENIED.
5 Petitioner Qui Xia Zhang, a native and citizen of the
6 People’s Republic of China, seeks review of the March 3,
7 2010, decision of the BIA denying her motion to reopen. In
8 re Qui Xia Zhang, No. A077 047 520 (B.I.A. Mar. 3, 2010).
9 We review the BIA’s denial of a motion to reopen for abuse
10 of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d
11 Cir. 2006). When the BIA evaluates evidence of country
12 conditions submitted with a motion to reopen, we review its
13 findings for substantial evidence. See Jian Hui Shao v.
14 Mukasey,
546 F.3d 138, 169 (2d Cir. 2008). We assume the
15 parties’ familiarity with the underlying facts and
16 procedural history of the case.
17 The BIA’s denial of Zhang’s motion to reopen as
18 untimely was not an abuse of discretion. A motion to reopen
19 generally must be filed no later than 90 days after the date
20 on which the final administrative decision has been rendered
21 in the proceedings sought to be reopened. 8 U.S.C. §
22 1229a(c)(7)(C)(i). There is no dispute that Zhang’s 2009
2
1 motion was untimely, and number-barred, as it was her third
2 such motion and the final administrative decision was issued
3 in 2002. See id.
4 Moreover, the BIA did not abuse its discretion in
5 declining to equitably toll the time for filing based on
6 ineffective assistance of counsel, because it reasonably
7 found that Zhang failed to demonstrate that she exercised
8 due diligence in pursuing her claim of ineffective
9 assistance of counsel. Zhang received her case files from
10 her previous attorney in December 2002, and that attorney
11 asserted that she informed Zhang at that point that she
12 failed to timely file a brief in support of Zhang’s appeal.
13 Zhang did not disagree with that contention when asked to
14 comment by the Disciplinary Committee with which she filed a
15 complaint. Thus, to the extent Zhang’s attorney’s
16 assistance was ineffective, Zhang knew, or should have
17 known, of the ineffective assistance in December 2002.
18 Consequently, the BIA did not abuse its discretion in
19 finding that Zhang did not exercise due diligence when,
20 after receiving her case files and learning that her
21 attorney had not timely filed a brief, she then waited more
22 than six years to allege ineffective assistance of counsel.
3
1 See Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007).
2 In addition, the BIA’s determination that Zhang’s
3 motion did not merit the exception to the time and number
4 limitations for motions based on changed country conditions
5 is supported by substantial evidence. The BIA reasonably
6 relied on the IJ’s underlying adverse credibility
7 determination in declining to credit an affidavit from
8 Zhang’s mother and an unauthenticated village committee
9 notice. See Qin Wen Zheng v. Gonzales,
500 F.3d 143, 149
10 (2d Cir. 2007). Moreover, substantial evidence supports the
11 BIA’s finding that the evidence Zhang submitted regarding
12 the repression of Falun Gong practitioners in China shows
13 not that conditions have worsened, but that the repression
14 has been continuous since 1999. See Jian Hui Shao,
546 F.3d
15 at 169. As the BIA reasonably declined to credit either
16 the affidavit from Zhang’s mother, or the purported village
17 committee notice, and the evidence supports the BIA’s
18 finding that repression of Falun Gong practitioners has been
19 continuous, it did not abuse its discretion in concluding
20 that Zhang failed to demonstrate a change in conditions in
21 China, and that her practice of Falun Gong represented
22 merely a change in personal circumstances, not a change in
4
1 country conditions sufficient to excuse the untimely and
2 number-barred filing. See Wei Guang Wang v. BIA, 437 F.3d
3 270, 274 (2d Cir. 2006). To the extent the petitioner
4 challenges the BIA’s discretionary decision to decline to
5 exercise its sua sponte authority to reopen her removal
6 proceedings, we lack jurisdiction to review the BIA’s
7 decision. See
Ali, 448 F.3d at 518.
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, the pending motion
10 for a stay of removal in this petition is DISMISSED as moot.
11
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
5
