Opinion
No. 06-0273-ag NAC.
August 22, 2007.
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.
FOR PETITIONER: Robert J. Adinolfi, New York, New York. FOR RESPONDENT: Randy G. Massey, United States Attorney, Southern District of Illinois, Robert L. Simpkins, Nathan E. Wyatt, Assistant United States Attorneys, Fairview Heights, Illinois.
PRESENT: HON. DENNIS JACOBS, Chief Judge , HON. GUIDO CALABRESI, HON. RICHARD C. WESLEY. Circuit Judges.
Petitioner Ai Lian Huang, a native and citizen of China, seeks review of the December 22, 2005 order of the BIA denying her motion to reopen. In re Ai Lian Huang, No. A73 181 617 (B.I.A. Dec. 22, 2005). We assume the parties' familiarity with the underlying facts and procedural history of the case.
We review the BIA's denial of a motion to reopen or reconsider for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). An abuse of discretion may be found where the BIA's decision "provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner." Id. at 233-34.
The BIA did not abuse its discretion in finding that Huang's motion was untimely and did not qualify for equitable tolling of the 90-day statute of limitations applied to motions to reopen. See 8 C.F.R. § 1003.2(c)(2) (motions to reopen "must be filed no later than 90 days after the date on which the final administrative decision was rendered"); Cekic v. INS, 435 F.3d 167, 171 (2d Cir. 2006) (discussing equitable tolling as applied to the filing deadline governing motions to reopen). As the BIA noted, Huang's motion to reopen offered no explanation as to why it was filed three years outside of the 90-day deadline, and did not argue that the deadline should be equitably tolled. Similarly, Huang's brief to this Court also fails to explain the motion's late filing, and raises no challenge to the BIA's findings regarding the untimeliness of the motion. Accordingly, the BIA's conclusion that there was no basis for tolling the 90-day deadline was not an abuse of discretion. See Kaur, 413 F.3d at 233-34. Because Huang's motion was untimely and did not qualify for equitable tolling, we need not consider the merits of her ineffective assistance of counsel claim. Cf. Garcia-Martinez v. Dep't of Homeland Sec., 448 F.3d 511, 514 n. 2 (2d Cir. 2006).
We decline to consider Huang's remaining arguments regarding her alleged fear of persecution pursuant to China's coercive population control program, as well as her allegations of ineffective assistance of counsel with respect to the attorney who prepared her motion to reopen, because those arguments were not first presented to the agency. See Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).
For the foregoing reasons, the petition for review is DENIED. Having completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1).