Opinion
No. 09-1593-ag.
March 29, 2010.
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.
Don W. Pak, Philadelphia, PA, for Petitioner.
Tony West, Assistant Attorney General, Civil Division; Keith I. McManus, Senior Litigation Counsel; Michele Y.F. Sarko, Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.
Present: RALPH K.WINTER, REENA RAGGI, DEBRA ANN LIVINGSTON, Circuit Judges.
SUMMARY ORDER
Petitioner Yu Bai Xiang, a native and citizen of the People's Republic of China, seeks review of a March 20, 2009 order of the BIA denying her motion to reopen her removal proceedings. In re Yu Bai Xiang, No. A 097 749 118(B.I.A. Mar. 20, 2009). 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 for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (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. 8 C.F.R. § 1003.2(c)(2). Under the doctrine of equitable tolling, however, these time and number restrictions may be relaxed to accommodate claims of ineffective assistance of counsel, so long as the movant has exercised "due diligence" in seeking to vindicate his or her rights. See Rashid v. Mukasey, 533 F.3d 127, 130-31 (2d Cir. 2008). Here, he BIA did not abuse its discretion in denying petitioner's untimely motion to reopen based on her failure to exercise such diligence.
Petitioner had knowledge of the facts and events supporting her ineffective assistance claim no later than March 2008. She waited over eight months, until December 2008, however, to raise the claim in her second untimely motion to reopen. See Man Hua Wang v. BIA , 508 F.3d 710, 715-16 (2d Cir. 2007) (holding that waiting eight months to file motion to reopen did not demonstrate due diligence). Even if we were to credit petitioner's argument that "it was reasonable to wait for a decision [on the pending motion to reissue and reopen] before filing an ineffective assistance of counsel claim," Pet Vs Reply at 4, she waited nearly five months after the BIA issued that decision in July 2008 before filing her second motion to reopen.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, 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 34.1(b).