No. 08-0440-ag.United States Court of Appeals, Second Circuit.
February 3, 2010.
Page 792
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.
Eric Zheng, New York, NY, for Petitioner.
Tony West, Assistant Attorney General; M. Jocelyn Lopez Wright, Senior Litigation Counsel; Anna Nelson, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.
PRESENT: WALKER, B.D. PARKER, and RICHARD C. WESLEY, Circuit Judges.
SUMMARY ORDER
Petitioner Xiang You Zheng, a native and citizen of the People’s Republic of China, seeks review of the January 5, 2009 order of the BIA, which denied his motion to reopen. In re Xiang You Zheng, No. A098 776 131 (B.I.A. Jan. 5, 2009). 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 for abuse of discretion. See Kaur v. BIA 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). Here, the BIA did not abuse its discretion in denying Zheng’s untimely motion to reopen. See 8 C.F.R. § 1003.2(c)(2).
Although ineffective assistance of counsel may provide a basis for equitably tolling the filing deadline for motions to reopen Cekic v. INS, 435 F.3d 167, 170-71 (2d Cir. 2006), the alien is required to demonstrate that he exercised “due diligence” in pursuing his claims 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,” see Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008).
The BIA reasonably found that Zheng failed to demonstrate that he acted with due diligence in pursuing his ineffective assistance of counsel claim between March 2007, when he discovered that his appeal was dismissed by the BIA, and July 2008 when he filed his motion to reopen. See Jian Hua Wang v. BIA 508 F.3d 710, 715 (2d Cir. 2007). Because the BIA did not abuse its discretion in declining to equitably toll the time limitation for filing Zheng’s motion, we need not consider the BIA’s alternative finding that he failed to demonstrate compliance with the requirements set forth i Matter of Lozada, 19 I. N. Dec. 637 (BIA 1988).
Finally, we decline to consider Zheng’s unexhausted due process arguments, Lin Zhang v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n. 1, 122 (2d Cir. 2007), and lack jurisdiction to consider his challenge to the BIA’s refusal to reopen his proceedings
Page 793
sua sponte, see Ali v. Gonzales, 448 F.3d 515, 518
(2d Cir. 2006).
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).