First, the alien must show that his or her "counsel's performance was so ineffective . . . [that it] impinged upon the fundamental fairness of the hearing in violation of the fifth amendment due process clause." Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 1994) (citation and internal quotation marks omitted); see also Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006); Iavorski v. INS, 232 F.3d 124, 135 (2d Cir. 2000). To meet this standard, the alien "must allege facts sufficient to show [(a)] that competent counsel would have acted otherwise, and [(b)] that he was prejudiced by his counsel's performance."
As we have held, "no matter how egregiously ineffective counsel's assistance may have been, an alien will not be entitled to equitable tolling unless [s]he can affirmatively demonstrate that [s]he exercised reasonable due diligence during the time period sought to be tolled." Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006). Here, the record supports the BIA's finding that Zheng knew of her prior attorney's ineffective assistance when the IJ issued his decision in April 2001.
However, the BIA exceeded its allowable discretion in its conclusion that Diallo did not qualify for equitable tolling of the 90-day statute of limitations on the basis of ineffective assistance of counsel. See Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006) (providing that the 90-day deadline may be equitably tolled to accommodate claims of ineffective assistance of counsel, so long as the movant has exercised "due diligence" in vindicating her rights). "In a situation where ineffective assistance of counsel prevents an alien from having the opportunity to present [her] case for relief, the filing deadline for motions to reopen will be equitably tolled until the ineffective assistance is, or should have been, discovered by a reasonable person in the situation."
In a situation where ineffective assistance of counsel prevents an alien from presenting his claim, the filing deadline for motions to reopen may be equitably tolled until the ineffective assistance "`is, or should have been, discovered by a reasonable person in the situation.'" Cekic v. INS, 435 F.3d 167, 171 (2d Cir. 2006) (quoting Iavorski v. INS, 232 F.3d 124, 134 (2d Cir. 2000)). Here, the affidavit Chen attached to his March 2006 motion stated that some time after the in absentia order was issued in June 1998, "[he] heard that [his] former attorney [Walker] had been convicted and sentenced to jail.
See Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006). In addition to demonstrating "that competent counsel would have acted otherwise, and . . . that he was prejudiced by his counsel's performance," Rabiu v. INS, 41 F.3d 879, 882-83 (2d Cir. 1994) (quotation marks and citations omitted), Ni had to establish that he exercised "due diligence" in pursuing his claim during "both the period of time before the ineffective assistance of counsel was or should have been discovered and the period from that point until the motion to reopen is filed," Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008); see also Cekic, 435 F.3d at 170 (requiring alien to demonstrate due diligence independent from demonstrating ineffective assistance of former counsel).
Under the doctrine of equitable tolling, this time limit may be excused if an alien demonstrates ineffective assistance of counsel as well as due diligence in pursuing that claim. Rashid v. Mukasey, 533 F.3d 127, 130-31 (2d Cir. 2008); Jin Bo Zhao v. INS, 452 F.3d 154, 157-60 (2d Cir. 2006); Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006). The movant bears the burden of proof to demonstrate that she "has exercised due diligence in pursuing her claim."
We review the agency's denial of a motion to reopen for abuse of discretion. Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006). An alien may only file one motion to reopen and must do so within 90 days of the agency's final administrative decision.
Rather, she argues that the BIA should have tolled the time limitations to accommodate her ineffective assistance of counsel claim. See Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006). In order to warrant equitable tolling, an alien is required to demonstrate "due diligence" in pursuing her claims during "both the period of time before the ineffective assistance of counsel was or should have been discovered and the period from that point until the motion to reopen is filed."
Liu bore the burden of demonstrating that she acted with due diligence. See Cekic v. INS, 435 F.3d 167, 171 (2d Cir. 2006). In her motion to reopen, she stated that she learned of her former attorney's failure to notify her of her hearing date on May 16, 2002.
As we have held, "no matter how egregiously in-effective counsel's assistance may have been, an alien will not be entitled to equitable tolling unless he can affirmatively demonstrate that he exercised reasonable due diligence during the time period sought to be tolled." Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006). Here, the record supports the BIA's finding that Li failed to established that he exercised due diligence during the period he seeks to toll.