14-2144
`Sun v. Lynch
`
`BIA
`A087 789 443
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
`
`SUMMARY ORDER
`
`RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
`ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
`PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
`FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
`(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
`OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
`
`At a stated term of the United States Court of Appeals for
`the Second Circuit, held at the Thurgood Marshall United States
`Courthouse, 40 Foley Square, in the City of New York, on the
`23rd day of June, two thousand fifteen.
`
`PRESENT:
`JON O. NEWMAN,
`BARRINGTON D. PARKER,
`DEBRA ANN LIVINGSTON,
`Circuit Judges.
`_____________________________________
`
`CHUAN HUI SUN,
`Petitioner,
`
`
`
`v.
`
`14-2144
`NAC
`
`
`
`
`
`LORETTA E. LYNCH, UNITED STATES
`ATTORNEY GENERAL,*
`Respondent.
`
`
`_____________________________________
`
`
`
`
`* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
`General Loretta E. Lynch is automatically substituted for former
`Attorney General Eric H. Holder, Jr., as the Respondent in this case.
`
`
`Sun v. Lynch
`
`BIA
`A087 789 443
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
`
`SUMMARY ORDER
`
`RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
`ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
`PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
`FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
`(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
`OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
`
`At a stated term of the United States Court of Appeals for
`the Second Circuit, held at the Thurgood Marshall United States
`Courthouse, 40 Foley Square, in the City of New York, on the
`23rd day of June, two thousand fifteen.
`
`PRESENT:
`JON O. NEWMAN,
`BARRINGTON D. PARKER,
`DEBRA ANN LIVINGSTON,
`Circuit Judges.
`_____________________________________
`
`CHUAN HUI SUN,
`Petitioner,
`
`
`
`v.
`
`14-2144
`NAC
`
`
`
`
`
`LORETTA E. LYNCH, UNITED STATES
`ATTORNEY GENERAL,*
`Respondent.
`
`
`_____________________________________
`
`
`
`
`* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
`General Loretta E. Lynch is automatically substituted for former
`Attorney General Eric H. Holder, Jr., as the Respondent in this case.
`
`
`
`
`
`FOR PETITIONER: Yee Ling Poon; Deborah Niedermeyer,
` Of Counsel, Law Office of Yee Ling
` Poon, LLC, New York, New York.
`
`FOR RESPONDENT: Benjamin C. Mizer, Acting Assistant
`Attorney General; Katharine E.
`Clark, Senior Litigation Counsel;
`Christina J. Martin, Trial Attorney,
`Office of Immigration Litigation,
`United States Department of Justice,
`Washington, D.C.
`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.
`
`Petitioner Chuan Hui Sun, a native and citizen of the
`People’s Republic of China, seeks review of a May 29, 2014,
`denying his motion to reopen his removal proceedings. In re
`Chuan Hui Sun, No. A087 789 443 (B.I.A. May 29, 2014). We assume
`the parties’ familiarity with the underlying facts and
`procedural history in this case.
`
`We have reviewed the BIA’s denial of Sun’s motion to reopen
`for abuse of discretion. See Ali v. Gonzales, 448 F.3d 515,
`517 (2d Cir. 2006) (per curiam). It is undisputed that Sun’s
`motion to reopen was untimely filed because the agency’s final
`order of removal was entered in May 2013 and Sun did not file
`his motion to reopen until February 2014, well beyond the 90-day
`
`
`
`2
`
`
`
`deadline. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
`§ 1003.2(c)(2). The BIA did not err in declining to equitably
`toll the time period based on Sun’s ineffective assistance of
`counsel claim.
`
`In order to warrant equitable tolling, even assuming that
`prior counsel was ineffective, an alien is required to
`demonstrate “due diligence” in pursuing his claim during “both
`the period of time before the ineffective assistance of counsel
`was or should have been discovered and the period from that point
`until the motion to reopen is filed.” Rashid v. Mukasey, 533
`F.3d 127, 132 (2d Cir. 2008); see also Cekic v. INS, 435 F.3d
`167, 170 (2d Cir. 2006). The BIA did not err in finding that
`Sun failed to demonstrate due diligence. He did not take any
`action to pursue reopening in the eight months that passed
`between the BIA issuing his final order of removal and his
`retention of current counsel in response to his arrest by the
`Department of Homeland Security. See Jian Hua Wang v. BIA, 508
`F.3d 710, 715-16 (2d Cir. 2007).
`
`The BIA did not err in rejecting his argument that he was
`unaware of his former counsel’s ineffective assistance because
`of his limited English. To the contrary, Sun was aware of the
`issues that form the basis for his allegations of ineffective
`
`
`
`3
`
`
`
`assistance because they were explicitly discussed with him
`through an interpreter at his hearing before an immigration
`judge.
`
`Accordingly, the BIA did not err in finding that Sun failed
`to demonstrate due diligence. That determination was
`dispositive of Sun’s ineffective assistance of counsel claim,
`and we need not consider the BIA’s alternative dispositive
`determination that Sun failed to demonstrate that he was
`prejudiced by his former counsel’s purportedly ineffective
`assistance. See Rashid, 533 F.3d at 131; see also Rabiu v. INS,
`41 F.3d 879, 882-83 (2d Cir. 1994).
`
`Nevertheless, we note that Sun’s allegations of
`ineffective assistance did not impact several of the IJ’s
`findings, which remain as valid bases for the agency’s
`underlying adverse credibility determination. Furthermore,
`as the BIA found, there is no merit to Sun’s assertion that he
`was prejudiced (his credibility damaged) by his former
`counsel’s failure to submit his wife’s family planning booklet.
`That booklet is inconsistent with Sun’s testimony, and thus
`would have supported the adverse credibility determination.
`See 8 U.S.C. § 1158(b)(1)(B)(iii) (providing that an adverse
`credibility determination may be based on record
`
`
`
`4
`
`
`
`inconsistencies); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162,
`165-66 (2d Cir. 2008). Therefore, as the IJ’s adverse
`credibility findings remain largely untouched by Sun’s
`allegations of ineffective assistance, the BIA did not err in
`finding that Sun failed to establish that he was prejudiced as
`required to succeed on his ineffective assistance claim. See
`Rabiu, 41 F.3d at 882-83.
`
`For the foregoing reasons, the petition for review is
`DENIED. As we have completed our review, any stay of removal
`that the Court previously granted in this petition is VACATED,
`and 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).
`
`
`
`
`
`
`
`
`
`
`
`FOR THE COURT:
`Catherine O=Hagan Wolfe, Clerk
`
`
`
`5
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