Tai v. Sessions

• Court: Court of Appeals for the Second Circuit
• Decided: July 25, 2018
• Docket: 17-313
• Status: Unpublished

Opinion

17-313 Tai v. Sessions BIA A079 141 088 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 25th day of July, two thousand eighteen.

PRESENT: JON O. NEWMAN, GERARD E. LYNCH, CHRISTOPHER F. DRONEY, Circuit Judges. _____________________________________

ZOU ZONG TAI, AKA ZONG TAI ZOU, Petitioner,

v. 17-313 NAC JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Jay Ho Lee, New York, NY.

FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Matthew B. George, Benjamin Mark Moss, Trial Attorneys, Office of Immigration Litigation, United States Department of Justice, Washington, DC. 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 Zou Zong Tai, a native and citizen of the

People’s Republic of China, seeks review of a January 11,

2017, decision of the BIA denying his motion to reopen as

untimely. In re Zou Zong Tai, No. A079 141 088 (B.I.A. Jan.

11, 2017). We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

The applicable standards of review are well established.

See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir.

2008). It is undisputed that Tai’s 2016 motion to reopen

was untimely because it was filed more than nine years

after his removal order became final in 2007. See 8 U.S.C.

§ 1229a(c)(7)(C)(i) (setting 90-day deadline for motions to

reopen); 8 C.F.R. § 1003.2(c)(2) (same). Ineffective

assistance of counsel may equitably toll the time

limitation on a motion to reopen if the movant has

exercised “due diligence” in pursuing the claim. See

Rashid v. Mukasey, 533 F.3d 127, 130-31 (2d Cir. 2008).

The movant “is required to exercise due diligence both

2 before and after he has or should have discovered

ineffective assistance of counsel.” Id. at 132. “[T]here

is no period of time which . . . is per se unreasonable,

and, therefore, disqualifies a petitioner from equitable

tolling–or, for that matter, any period of time that is per

se reasonable.” Jian Hua Wang v. BIA, 508 F.3d 710, 715

(2d Cir. 2007).

The BIA did not abuse its discretion in concluding that

Tai failed to establish due diligence throughout the entire

nine-year period he sought to toll. See Ke Zhen Zhao v.

U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (“An

abuse of discretion may be found . . . where the Board’s

decision provides no rational explanation, inexplicably

departs from established policies, is devoid of any

reasoning, or contains only summary or conclusory

statements; that is to say, where the Board has acted in an

arbitrary or capricious manner.” (citations omitted)). Tai

claimed to have consulted six to seven law offices from

2008 to 2010 and twelve to thirteen law offices from 2011

to 2016; however, he submitted only business cards to

corroborate these 18 to 20 consultations. Moreover, Tai

merely asserted that each law office declined to assist him

3 because his petition for review from the denial of his

initial application had been unsuccessful; he did not

elaborate further on those consultations or indicate

whether he discussed his prior attorneys’ performance or

the possibility of filing a motion to reopen his

proceedings. Regardless, even crediting Tai’s estimate

that he visited at least one law office every six months

from 2011 to 2016, the BIA did not abuse its discretion in

finding lack of due diligence because Tai did not explain

why he waited six months or more between visits during this

five-year period. See Rashid, 533 F.3d at 133 (“[A]n alien

is required to exercise due diligence during

the entire period he seeks to toll.”). Moreover, given

that Tai was ordered removed in 2007 and has no

authorization to remain in the United States, the BIA

reasonably determined that his sporadic law office

consultations did not reflect diligence. See Cekic v.

INS, 435 F.3d 167, 171-72 (2d Cir. 2006) (holding that two-

year delay between time petitioners learned of expiration

of their status and moved to reopen constituted a lack of

diligence).

4 We reject Tai’s argument that the BIA’s reasoning was

insufficient. Given Tai’s minimal evidence to support his

claim, the lack of detail regarding any of his legal

consultations, and the BIA’s citation to authority requiring

due diligence throughout the entire period to be tolled, the

BIA’s conclusion that Tai did not demonstrate due diligence

was within its discretion.

For the foregoing reasons, the petition for review is

DENIED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court