Li v. BCIS, (2nd Cir. 2007)

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06-5641-ag

Li v. BCIS

BIA

Nelson, IJ

A73-616-472

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R U L I N G S BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED

A F T E R JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 0.23 AND

F E D E R A L RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT

C I T E S A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION

M U S T EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: "(SUMMARY ORDER)."

U N L E S S THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE

W I T H O U T PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV), THE

P A R T Y CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER

W I T H THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO COPY IS SERVED BY REASON OF THE

A V A I L A B I L I T Y OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT

D A T A B A S E AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

A t a stated term of the United States Court of Appeals

f o r the Second Circuit, held at the Daniel Patrick Moynihan

U n i t e d States Courthouse, 500 Pearl Street, in the City of New

Y o r k , on the 29th day of August, two thousand seven.

PRESENT:

H O N . PIERRE N. LEVAL,

H O N . ROSEMARY S. POOLER,

H O N . RICHARD C. WESLEY,

C i r c u i t Judges.

S H U F A N G LI,

Petitioner,

v. 06-5641-ag

NAC

B U R E A U OF CITIZENSHIP AND IMMIGRATION

SERVICES,

Respondent.

F O R PETITIONER: L o r a n c e Hockert, New York, New York.

F O R RESPONDENT: P e t e r D. Keisler, Assistant Attorney G e n e r a l , Greg D. Mack, Senior L i t i g a t i o n Counsel, Robbin K. Blaya, T r i a l Attorney, Office of I m m i g r a t i o n Litigation, U.S.

D e p a r t m e n t of Justice, Washington, D.C.

U P O N DUE CONSIDERATION of this petition for review of a d e c i s i o n of the Board of Immigration Appeals ("BIA"), it is h e r e b y ORDERED, ADJUDGED, AND DECREED, that the petition for r e v i e w is DENIED.

P e t i t i o n e r Shufang Li, a native and citizen of China, s e e k s review of a November 30, 2006 decision of the BIA d e n y i n g her motion to reopen. In re Shufang Li, No. A73 616 4 7 2 (B.I.A. Nov. 30, 2006). We assume the parties' f a m i l i a r i t y with the underlying facts and procedural history o f the case.

T h i s Court reviews the BIA's denial of a motion to r e o p e n for abuse of discretion. Twum v. INS, 411 F.3d 54, 5 8 (2d Cir. 2005). An abuse of discretion will be found "in t h o s e circumstances where the [BIA's] decision provides no r a t i o n a l explanation, inexplicably departs from established p o l i c i e s , is devoid of any reasoning, or contains only s u m m a r y conclusions or statements; that is to say, where the [ B I A ] has acted in an arbitrary or capricious manner." Ke Z h e n Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 93 (2d Cir. 2 0 0 1 ) (internal citations omitted).

T h e regulations state that a motion to reopen must be f i l e d no later than 90 days after the final administrative d e c i s i o n was rendered. 8 C.F.R. § 1003.2(c)(2). There is n o dispute that Li's motion was filed beyond the 90-day d e a d l i n e , but she argues that in light of her ineffective a s s i s t a n c e of counsel claim, the filing deadline should have b e e n equitably tolled. 1 See, e.g., Iavorski v. INS, 232 F . 3 d 124, 129-33 (2d Cir. 2000). The BIA has set forth p r o c e d u r a l requirements for ineffective assistance of c o u n s e l claims with which a movant must comply. Matter of L o z a d a , 19 I & N Dec. 637, 639 (BIA 1988); Esposito v. INS, 9 8 7 F.2d 108, 110-11 (2d Cir. 1993). Furthermore, in making a n ineffective assistance of counsel claim, the movant must d e m o n s t r a t e that she was prejudiced by her prior counsel's conduct. See, e.g., Yi Long Yang v. Gonzales, 478 F.3d 133, 1 4 2 (2d Cir. 2007). We need not determine whether Li s a t i s f i e d the procedural requirements set forth in Lozada b e c a u s e the BIA did not abuse its discretion in finding that L i failed to prove that she was prejudiced by her prior c o u n s e l ' s conduct. To prove prejudice, the alien must e s t a b l i s h not only that competent counsel would have acted o t h e r w i s e , but also that had counsel acted appropriately, t h e result would have been different. Esposito, 987 F.2d at 111. In her motion to reopen, Li argued that all of her p r e v i o u s attorneys engaged in prejudicial conduct when they f a i l e d to notice or attempt to correct a translation error i n one of her documents. However, the BIA did not abuse its d i s c r e t i o n in holding that Li failed to prove that the r e s u l t of her case would have been different had the mistake b e e n discovered or corrected earlier. In addition to noting t h e inconsistency regarding the timing of the abortion, the I J cited to four other problems with Li's credibility, i n c l u d i n g her inability to discuss the timing or details of t h e first four abortions. Thus, there is sufficient e v i d e n c e in the record to support the BIA's conclusion that t h e discovery of the allegedly mistranslated document would n o t have changed the outcome of Li's case. Accordingly, b e c a u s e the BIA correctly determined that Li was not p r e j u d i c e d by the conduct of her prior attorneys, it p r o p e r l y denied her motion to reopen as untimely.

F o r the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion f o r a stay of removal in this petition is DISMISSED as moot.

F O R THE COURT: C a t h e r i n e O'Hagan Wolfe, Clerk B y :

1 Because Li does not make any arguments regarding her adjustment of status claim, we deem any such claim abandoned. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1 (2d Cir. 2005).

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