Opinion
No. 08-1460-ag NAC.
October 31, 2008.
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: Theodore N. Cox, New York, New York. FOR RESPONDENT: Gregory G. Katsas, Assistant Attorney General, Civil Division; Barry J. Pettinato, Assistant Director; Katharine E. Clark, Trial Attorney, Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C.
PRESENT: HON. DENNIS JACOBS, Chief Judge , HON. RALPH K. WINTER, HON. SONIA SOTOMAYOR, Circuit Judges.
Petitioner Xiu Ying Liu, a native and citizen of the People's Republic of China, seeks review of a March 14, 2008 order of the BIA denying her motion to reopen. In re Xiu Ying Liu, No. A 79 299 146 (B.I.A. Mar. 14, 2008). We assume the parties' familiarity with the underlying facts and procedural history in this 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).
Here, the BIA did not abuse its discretion in denying Liu's motion to reopen. Kaur v. BIA, 413 F.3d 232, 233-34 (2d Cir. 2005). A motion must generally be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened, or on or before September 30, 1996, whichever is later. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). However, the numerical bar and 90-day deadline may be equitably tolled to accommodate claims of ineffective assistance of counsel, so long as the movant has exercised "due diligence" in vindicating his or her rights.See Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006). It is undisputed that Liu's motion was filed beyond the 90-day filing deadline. See 8 C.F.R § 1003.2(c)(2).
The BIA reasonably found that Liu's case did not warrant equitable tolling based on ineffective assistance of counsel. See Iavorski v. INS, 232 F.3d 124 (2d Cir. 2000). The BIA appropriately observed that while Liu claimed that she lost her case due to ineffective assistance of counsel, she failed to indicate which additional legal arguments or factual evidence would have been introduced had prior counsel more adequately prepared her, or to provide an explanation as to how any additional evidence would have resulted in a different outcome. See, e.g., Esposito v. INS, 987 F.2d 108, 111 (2d Cir. 1993) (finding that to demonstrate prejudice, the petitioner must establish that had counsel acted appropriately, the result of the proceeding would have been different). Liu asserts that she established prejudice because the IJ's credibility findings related directly to her allegations that prior counsel did not properly prepare her for her hearing. However, even assuming that with adequate preparation Liu would have been more responsive to questions during her hearing, the IJ's adverse credibility determination did not rely solely upon Liu's demeanor. Rather, the IJ also relied upon implausible aspects of Liu's testimony, as well as his conclusion that the background materials did not corroborate her claim. Because Liu failed to address the adverse credibility determination in her motion to reopen, the agency properly found that she failed to establish prejudice. See id. Under these circumstances, the BIA did not abuse its discretion in denying Liu's motion to reopen. See Kaur, 413 F.3d at 233. Accordingly, we need not reach Liu's additional argument that she demonstrated due diligence in pursuing her claim.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the 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(b).