AI TING LI, a.k.a. Ai Qin Li, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 378 F. App'x 5

SUMMARY ORDER Petitioner A Ting Li, a native and citizen of the People’s Republic of China, seeks review of an April 10, 2009, order of the BIA denying her motion to reconsider. In re Ai Ting Li, a.k.a. Ai Qin Li, No. [ AXXX XXX XXX ] (B.I.A. April 10, 2009). We assume the parties’ familiarity with the underlying facts and procedural history in this case. This Court reviews the BIA’s denial of a motion to reconsider for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam); Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir.2006).

A motion to reconsider must specify errors of fact or law in the BIA’s prior decision and be supported with pertinent authority. 8 C.F.R. § 1003.2(b)(1). Here, the BIA did not abuse its discretion in denying Li’s motion to reconsider. In denying that motion, the BIA reconsidered its prior decision in light of Matter of Compean, 24 I. & N. Dec. 710 (A.G.2009), concluding that the change in law did not affect its prior decision. The BIA reasonably concluded that by filing her motion to reopen more than 90 days after her discovery of the alleged attorney misconduct, Li failed to exercise due diligence.

This conclusion is consistent with our prior decisions. See, e.g., Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir.2008) (in order to warrant equitable tolling, an alien is required to demonstrate “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.”). Accordingly, the BIA did not abuse its discretion when it found “no legal or factual defect” in its prior decision denying Li’s untimely motion to reopen based on ineffective assistance of counsel.

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).

In June 2009, current Attorney General Holder vacated the former Attorney General’s decision in Matter of Compean, directing the agency to "apply the pre-Compean standards to all pending and future motions to reopen based upon ineffective assistance of counsel, regardless of when such motions were filed.” Matter of Compean, 25 I. & N. Dec. 1, 3 (A.G.2009). Nonetheless, the BIA’s reliance on Compean does not affect the outcome of this case.

In order to establish ineffective assistance of counsel under both the Compean and pre-Compean standards, an alien is required to demonstrate that she exercised due diligence in pursuing her ineffective assistance of counsel claim. See Jian Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 47 (2d Cir.2005). Here, the BIA denied Li's motion based on her failure to demonstrate that she exercised due diligence — a dispositive reason for denying a motion to reopen based on ineffective assistance of counsel independent of the vacated Compean decision.