YUN QING LIU, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 374 F. App'x 67

SUMMARY ORDER Petitioner Yun Qing Liu, a native and citizen of the People’s Republic of China, seeks review of the November 18, 2008 order of the BIA, which denied her motion to reopen. In re Yun Qing Liu, No. [ AXXX XXX XXX ] (B.I.A. Nov. 18, 2008). 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 Liu’s motion to reopen as untimely because she filed it over five years after the BIA issued its final order of removal. See 8 C.F.R. § 1003.2(c)(2). In some circumstances, under the doctrine of equitable tolling, ineffective assistance of counsel can extend the filing deadline for an alien’s motion to reopen. See Cekic v. INS, 435 F.3d 167, 170 (2d Cir.2006).

In order to warrant equitable tolling, however, the alien is required to demonstrate that she exercised “due diligence” in pursuing her 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 did not act arbitrarily or capriciously in concluding that Liu failed to exercise due diligence. Though “there is no period of time which we can say is per se unreasonable,” Jian Hua Wang v.

BIA, 508 F.3d 710, 715 (2d Cir.2007), Liu filed her first motion to reopen three years after she reasonably should have discovered that she received ineffective assistance of counsel. Liu asserts that she did not become aware of the ineffective assistance of her previous counsel until May 2008, when she filed her second motion to reopen. The record is clear that, in February 2003, Liu was aware that the initial BIA notice of decision denying her petition for asylum and withholding of removal had been mailed to an incorrect address.

She points to no evidence indicating that, despite this fact, she diligently pursued her claim between 2003 and 2006, save for an unspecific contention that, at some point after February 2003, she sought a second opinion from other lawyers. We find that the petitioner has not met her burden in demonstrating due diligence, see Rashid, 533 F.3d at 132, and the BIA therefore did not err in finding that the circumstances do not warrant equitable tolling. For the foregoing reasons, the petition for review is DENIED.

As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.