Li vs US Depart. of Homeland Security [Summ. Ord.], (2nd Cir. 2006)

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BIA

Sc ho pp ert , IJ

A73-180-194

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER

AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY

OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY

OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR

IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the

Thurgood Marshall United States Courthouse, Foley Square, in the City of New York, on the 19th

day of June, two thousand and six.

PRESENT:

HON. JAMES L. OAKES,

HON. CHESTER J. STRAUB,

HON. ROBERT A. KATZMANN,

Circuit Judges.

Jin Rui Li,

Petitioner,

-v.- No. 05-6000-ag

NAC

Alberto R. Gonzales, Attorney General,

Unit ed States Department of Homeland Security,

Respondents.

FOR PETITIONER: Wei Jia, Boston, Massachusetts.

FOR RESPONDENTS: Mary Beth Buchanan, United States Attorney for the Western

District of Pennsylvania, Michael C. Colville, Assistant United

States Attorney, Pittsburgh, Pennsylvania.

UPON DUE CONSIDERATION of this consolidated 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 be DENIED.

Jin Rui Li petitions for review of the BIA's order denying his motion to reopen procee dings . We presume the parties' familiarity with the underlying facts, the procedural history, and the scope of the issues presented on appeal.

An alien is generally limited to one motion to reopen deportation proceedings, which must generally be filed within ninety days of the final administrative decision. 8U.S.C. § 1229a(c)(7) (2005); 8 C.F.R. § 1003.2(c)(2) (2005). An alien may obtain equitable tolling of these time and numerical limits based on ineffective assistance of counsel only if (1) counsel's conduct has caused prejudice, and (2) the alien has exercised due diligence in pursuing the case during the period he seeks to toll. See Azmond Ali v. Gonzales, --- F.3d , 2006 WL 1304939, at *2 (2d Cir. May 12, 2006); Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006).

In denying Li's motion to reopen based on ineffective assistance of counsel, the BIA determined that he did not exercise due diligence in pursuing his claim since he waited over six years before filing his motion, and therefore did not merit equitable tolling of the filing deadline.

The BIA also relied on the fact that, although Li learned of the denial of his appeal in 2000, he waited until 2004 to request his file from his former counsel. Li argues that the earliest time for him to pursue his motion was when he met with his new counsel in 2005 (at which point he finally obtained his file and that it is therefore irrelevant how many years have passed since his appeal was denied. However, Li provides no explanation as to why, after learning that his appeal had been dismissed, he waited four years before even requesting his file. Under these circumstances, we agree with the BIA that Li failed to exercise due diligence. See Azmond Ali, 2006 WL 1304939, at *2; Cekic, 435 F.3d at 170-71.

For the foregoing reasons, the petition for review is DENIED.

FOR THE COURT: Roseann B. MacKechnie, Clerk By:

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