Opinion
No. 07-4052-ag NAC.
January 14, 2009.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.
FOR PETITIONER: John Chang, New York, New York. FOR RESPONDENT: Gregory G. Katsas, Assistant Attorney General, Civil Division; Richard M. Evans, Assistant Director; Rebecca A. Niburg, Trial Attorney, Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C.
PRESENT: 7 HON. DENNIS JACOBS, Chief Judge , HON. ROSEMARY S. POOLER, HON. REENA RAGGI, Circuit Judges.
Petitioner Zhu Yan Huang, a native and citizen of the People's Republic of China, seeks review of an August 24, 2007 order of the BIA denying his motion to reopen. In re Zhu Yan Huang, No. A 73 659 590 (B.I.A. Aug. 24, 2007). We assume the parties' familiarity with the underlying facts and procedural history.
When the BIA denies a motion to reopen, this Court reviews the BIA's decision for an abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005). "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." Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (internal citations omitted). In reviewing the BIA's denial of motions to reopen, this Court has remained mindful of the Supreme Court's admonition that motions to reopen are "disfavored." See Maghradze v. Gonzales, 462 F.3d 150, 154 (2d Cir. 2006).
The BIA did not abuse its discretion in denying Huang's motion.See Kaur, 413 F.3d at 33. Huang's motion was untimely, see 8 C.F.R § 1003.2(c)(2), and the BIA properly found that Huang's case did not warrant equitable tolling based on ineffective assistance of counsel. Tolling of the period for the filing of motions to reopen is permitted until counsel's ineffectiveness "is, or should have been, discovered by a reasonable person in the situation."See Iavorski v. INS, 232 F.3d 124, 134 (2d Cir. 2000). Further, an alien must demonstrate the exercise of due diligence in the time before ineffectiveness was or should have been discovered and in the time thereafter until the motion to reopen is filed. See Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008). Huang contends that he received ineffective 22 assistance in 2001, that he exercised due diligence because he only learned of his earlier counsel's ineffective assistance after retaining current counsel, and that he filed the motion to reopen upon learning of that ineffective assistance. However, the BIA reasonably found that Huang failed to exercise due diligence. As the BIA noted, Huang changed lawyers in 2004, and should have discovered his prior counsel's ineffectiveness at that point. See Iavorski, 232 F.3d at 134. However, Huang made no allegation regarding ineffective assistance until 2007, when he was represented by yet another attorney. In light of Huang's failure to explain before the BIA the delay in the filing of his motion to reopen, we cannot find that the BIA abused its discretion in denying that motion.See Kaur, 413 14 F.3d at 233-34.
For the foregoing reasons, the petition for review is DENIED. The pending motion for a stay of removal in this petition is DISMISSED as moot.