11-3950
    Song v. Holder
                                                                                   BIA
                                                                          A073 641 886
                      UNITED STATES COURT OF APPEALS
                          FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 15th day of August, two thousand twelve.

    PRESENT:
             JON O. NEWMAN,
             GERARD E. LYNCH,
             RAYMOND J. LOHIER, JR.,
                  Circuit Judges.
    _____________________________________

    GONG ZI SONG,
             Petitioner,

                     v.                                    11-3950
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               Wendy Tso, New York, New York.

    FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
                                  Attorney General; Ernesto H. Molina,
                                  Jr., Assistant Director; Gladys M.
                                  Steffens Guzman, Trial Attorney,
                                  Office of Immigration Litigation,
                                  Civil Division, United States
                                  Department of Justice, Washington,
                                  D.C.
    UPON DUE CONSIDERATION of this petition for review of a

decision of the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is DENIED.

    Petitioner Gong Zi Song, a native and citizen of the

People’s Republic of China, seeks review of a September 2,

2011, order of the BIA denying her motion to reopen.     In re

Gong Zi Song, No. A073 641 886 (B.I.A. Sept. 2, 2011).      We

assume the parties’ familiarity with the underlying facts

and procedural history in this case.

    We review the BIA’s denial of a motion to reopen for

abuse of discretion.   Kaur v. BIA, 

, 233 (2d

Cir. 2005).   Song challenges the BIA’s finding that she was

not prejudiced by her former attorney Nolan Cheng’s failure

to include evidence of her eligibility for adjustment of

status with her 2002 motion to reopen.

    To prevail on a claim of ineffective assistance, a

movant “must show that [her] counsel’s performance was so

ineffective as to have impinged upon the fundamental

fairness of the hearing in violation of the [F]ifth

[A]mendment [D]ue [P]rocess [C]lause.”   Rabiu v. INS, 

, 882 (2d Cir. 1994) (internal quotation marks


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omitted).   To show a deprivation of fundamental fairness, a

movant must allege facts to establish, inter alia, that

“[s]he was prejudiced by [her] counsel’s performance.”       Id.

(internal citation and quotation marks omitted).     To show

actual prejudice, a petitioner must demonstrate that she

would have been entitled to relief but for the alleged

ineffective assistance.   Id. (internal citation omitted).

    The BIA did not err in concluding that Song was not

prejudiced by Cheng’s conduct because even if Cheng had

included Song’s application for adjustment of status and her

family petition approval notice with her 2002 motion to

reopen, the motion still would have been untimely.     See

8 C.F.R. § 3.2(c)(2) (1997) (90-day time limitation for

motions to reopen); see also Rabiu, 41 F.3d at 882-83,

citing Miranda-Lores v. INS, 

, 85 (5th Cir. 1994)

(finding that proving actual prejudice requires a petitioner

to establish that “had the application been filed, [s]he

would have been entitled to relief”); Matter of Valerde-

Pacheco, 23 I&N Dec. 253, 256 (BIA 2002) (a motion to reopen

to pursue an application of adjustment of status, based on a

marriage entered into after the commencement of proceedings,

may be granted only, if, inter alia, the motion was timely

filed).

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    Song also argues that the BIA’s prejudice finding was

nevertheless erroneous because the time limitation for her

2002 motion to reopen could have been tolled by the

ineffective assistance of her original attorneys at her

merits hearing.   This argument is unavailing, however,

because she provided no evidence to support this claim.     See

Debeatham v. Holder, 

, 484-85 (2d Cir. 2010)

(describing the evidence that a petitioner arguing

ineffective assistance must present).   While not a

jurisdictional prerequisite, we refrain from considering an

ineffective assistance of counsel argument where, as here,

the petitioner failed to raise it before the BIA.     Rabiu, 41

F.3d at 882, citing Arango-Aradondo v. INS, 

, 614

(2d Cir. 1994).

    Finally, Song’s argument that her due process rights

were violated because of Cheng’s incompetence is defeated by

her failure to show that she was prejudiced by Cheng’s

conduct.   Rabiu, 41 F.3d at 883; Debeatham, 602 F.3d at 484.

    For the foregoing reasons, the petition for review is

DENIED.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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