QIU NING WANG, aka Qiu Ling Wang, Petitioner, v. Michael B. MUKASEY, U.S. Attorney General,[1] Respondent.

No. 07-1019-ag.United States Court of Appeals, Second Circuit.
March 12, 2008.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]
[1] Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Michael B. Mukasey is automatically substituted for former Attorney General Alberto R. Gonzales as the respondent in this case.

UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals (“BIA”), it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED.

Meer M.M. Rahman, New York, NY, for Petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division, Carol Federighi, Senior Litigation Counsel, Mona Maria Yousif, Attorney, United States Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

PRESENT: Hon. ROSEMARY S. POOLER, Hon. B.D. PARKER and Hon. PETER W. HALL, Circuit Judges.

Petitioner Qiu Ning Wang, a native and citizen of China, seeks review of the February 15, 2007 order of the BIA denying her motion to reopen. In re Qiu Ning Wang, No. A73 078 466 (B.I.A. Feb. 15, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

We review the BIA’s denial of a motion to reopen or reconsider for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). An abuse of discretion may be found where the BIA’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.” Id. at 233-34.

We find no abuse of discretion in the BIA’s finding that Wang’s motion was untimely and did not qualify for equitable tolling of the 90-day filing deadline applicable to motions to reopen. It is undisputed that Wang’s motion to reopen was both time and number barred. 8 C.F.R. § 1003.2(c)(2). However, Wang argued before the BIA that she received ineffective assistance of counsel with respect to her first motion to reopen. To prevail on an ineffective assistance of counsel claim the petitioner must demonstrate “both that his constitutional right to due process was thereby violated, and that he exercised due diligence in pursuing the case during the period for which tolling is sought” and after he discovered the alleged ineffectiveness. Zheng Zhong Chen v. Gonzales, 437 F.3d 267, 269 (2d Cir. 2006) (per curiam); see lavorski v. INS, 232 F.3d 124, 134 (2d Cir. 2000). However, as the BIA found, Wang failed to demonstrate either prejudice or due diligence.

Even assuming that Wang had demonstrated that she was prejudiced by her prior counsel’s ineffective assistance, the denial of her motion would have been appropriate because she failed to show that she acted with due diligence during the

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period she sought to toll. See Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006) (noting that “no matter how egregiously ineffective counsel’s assistance may have been, an alien will not be entitled to equitable tolling unless he can affirmatively demonstrate that he exercised reasonable due diligence during the time period sought to be tolled”). In her brief to this Court, Wang has not challenged the BIA’s due diligence finding and, therefore, has waived any such challenge. Yueqing Zhang v. Gonzalez 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir. 2005).

For the foregoing reasons, the petition for review is DENIED. The pending motion for a stay of removal in this petition is DISMISSED as moot.