18-2691 Fang v. Wilkinson BIA Lamb, IJ A073 552 824 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 19th day of February, two thousand twenty-one. PRESENT: ROSEMARY S. POOLER, ROBERT D. SACK, MICHAEL H. PARK, Circuit Judges. _____________________________________ XIN JING FANG, Petitioner, v. 18-2691 NAC ROBERT M.WILKINSON, ACTING UNITED STATES ATTORNEY GENERAL, 1 Respondent. _____________________________________ FOR PETITIONER: John Chang, Esq., New York, NY. FOR RESPONDENT: Jeffrey Bossert Clark, Acting Assistant Attorney General; Holly 1 Pursuant to Federal Rule of Appellate Procedure 43(c)((2), Robert M. Wilkinson is automatically substituted as Respondent. M. Smith, Kohsei Ugumori, Senior Litigation Counsel, 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 Xin Jing Fang, a native and citizen of the People’s Republic of China, seeks review of an August 16, 2018, decision of the BIA affirming an August 22, 2017, decision of an Immigration Judge (“IJ”) denying Fang’s untimely motion to reopen. In re Xin Jing Fang, No. A 073 552 824 (B.I.A. Aug. 16, 2018), aff’g No. A 073 552 824 (Immig. Ct. N.Y. City Sept. 18, 2017). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the denial of a motion to reopen for abuse of discretion and the agency’s determination of country conditions for substantial evidence. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008). It is undisputed that Fang’s 2014 motion to reopen was untimely because she filed it more than 18 years after she accepted a 2 final order of voluntary departure in 1996. 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), 1003.23(b)(1) (same). While Fang argues for exceptions to this deadline based on ineffective assistance of counsel and changed conditions in China, we find no error in the BIA’s conclusion that she did not satisfy either exception. 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 ...
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