Lin v. Immigration & Naturalization Service
Opinion of the Court
SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that petitions for review of orders of the Board of Immigration Appeals denying (1) a second motion to reopen removal proceedings and (2) reconsideration of that motion are hereby DENIED.
Guang Lin, a Chinese national, petitions this court for review of a July 2, 2002 Board of Immigration Appeals (“BIA”) order denying his second motion to reopen his removal proceedings on the ground that the motion was barred by the time and number limitations of 8 C.F.R. § 3.2(c)(2) (recodified at 8 C.F.R. § 1003.2(c)(2) and referred to hereinafter as such). Lin also petitions for review of the BIA’s April 23, 2003 order denying reconsideration of his motion to reopen. We assume the parties’ familiarity with the facts and procedural history of this matter as well as our summary disposition of Lin’s earlier petitions for review. See Lin v. INS, 61 Fed.Appx. 729 (2d Cir. 2003). We hereby deny the petitions for review.
When the BIA has applied the correct law to a motion to reopen, our review
Although Lin catalogues ten factors relevant to his asserted exercise of due diligence, they coalesce to support a single argument: the BIA unreasonably failed to recognize that Lin had not learned of his counsel’s failure to pursue a direct administrative appeal of his removal order until April 2002, less than two months before he filed his second motion. In fact, Lin never presented this claim to the BIA, although he was represented by new counsel in his second motion to reopen. Indeed, the motion papers never even request equitable tolling of the time and number limitations here at issue, much less attempt to demonstrate due diligence. To satisfy the requirements of Matter of Lozada, 19 I & N Dec. 637 (B.I.A. Apr. 13, 1988), Lin did submit a copy of the disciplinary complaint he filed against counsel. Therein, he stated, “15.... Over the course of two years, under my relative’s constant questioning, Mr. Cox finally admitted that he never appealed] the [Immigration Judge’s] decision for me. 16. Mr. Cox then filed a Motion to Reopen.” Lin Guang Aff. May 8, 2002 (emphasis added). As this quotation demonstrates, Lin’s disciplinary complaint did not advise the BIA that he first learned of his lawyer’s ineffectiveness on direct appeal in April 2002; rather, from the sequence of reported events, a person would reasonably have concluded that he learned the relevant information sometime before January 2, 2001, the date his first motion to reopen was filed. On this record, the BIA’s finding that Lin “has offered no explanation as to why this motion was filed late” cannot be deemed arbitrary or capricious, nor can its decision to deny the motion to reopen be ruled an abuse of discretion.
In moving for reconsideration, Lin’s counsel asserted that his client’s first “attorney continued to tell him that an appeal had been made in his case until only several months ago.” On its face, the assertion is conclusory and too vague to satisfy an alien’s burden with respect to due diligence given that no attempt is made to reconcile this unsupported assertion with the sequence of events in Lin’s own sworn affidavit, which, as already noted, suggests an earlier awareness of counsel’s purported ineffectiveness. See generally Iavorski v. INS, 232 F.3d at 134 (holding tolling not available where reasonable alien “should have known that he had been victim of ineffective assistance counsel” before end of period he sought to toll); cf. Dodds v. Cigna Sec., Inc., 12 F.3d 346, 350 (2d Cir. 1993) (rejecting equitable tolling where investor of ordinary intelligence would have been on inquiry notice of fraud). Under these circumstances, we cannot conclude that the BIA abused its
Accordingly, the petitions for review of the orders of the Board of Immigration Appeals are hereby DENIED.
Reference
- Full Case Name
- Guang LIN, also known as Kong Lin, also known as Chou Xian Li v. IMMIGRATION AND NATURALIZATION SERVICE
- Status
- Published