Reng Sheng Chen v. Holder

SUMMARY ORDER Petitioner Reng Sheng Chen, a native and citizen of China, seeks review of a January 29, 2013 decision of the BIA denying his untimely and number-barred motion to reopen. In re Reng Sheng Chen, No. A078 928 151 (B.I.A. Jan. 29, 2013). We assume the parties’ familiarity with the *48 underlying facts and procedural history in this case. We review the BIA’s denial of a motion to reopen for abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (per curiam). An alien seeking to reopen proceedings is required to file a motion to reopen no later than 90 days after the date on which the final administrative decision was rendered and may file only one such motion. See 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2). There is no dispute that Chen’s 2012 motion was untimely and number barred because he filed two prior motions to reopen and his order of removal became final in 2007. See 8 U.S.C. § 1101(a)(47)(B). Chen contends, however, that his recent conversion to Christianity in the United States and worsened treatment of Christians in China constitute materially changed conditions excusing his motion from the applicable time and number limitations. He also argues that the attorney who filed his second motion to reopen rendered ineffective assistance of counsel. The BIA did not abuse its discretion in denying reopening due to Chen’s failure to support his motion with an application for relief. The applicable regulation makes clear that an appropriate application for relief is mandatory, not permissive. See 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen proceedings for the purpose of submitting an application for relief must be accompanied by the appropriate application for relief and all supporting documentation.”); Lin Xing Jiang v. Holder, 639 F.3d 751, 757 (7th Cir.2011). Chen’s contention that the BIA erred by requiring evidence of changed conditions in his home province of Fujian is misplaced because he bore the burden of supporting his motion with “material” evidence. See 8 C.F.R. § 1003.2(c)(1); 8 U.S.C. § 1229a(c)(7)(B). Cf. Jian Hui Shao v. Mukasey, 546 F.3d 138, 148-49, 160-62 (2d Cir.2008) (stating that where enforcement of a policy varies, it is the applicant’s burden to show a well-founded fear of persecution in his locality in China). Chen does not Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n. 1 (2d Cir.2005). Lastly, the BIA did not err by declining to address Chen’s ineffective assistance claim. Ineffective assistance of counsel may toll the 90-day time limitation on motions to reopen if the movant has exercised “due diligence” in pursuing his claim throughout the entire period sought to be tolled. See Rashid v. Mukasey, 533 F.3d 127, 130-31 (2d Cir.2008). However, Chen’s ineffective assistance claim, even if credited, could not furnish a basis for tolling the 90-day time limitation because his attorney’s allegedly deficient representation did not commence until 2009 — well after the 90-day period had expired. Chen’s assertion that the BIA erred by declining to reopen his proceedings sua sponte is also misplaced because his motion did not request sua sponte reopening, which, in any event, we generally lack jurisdiction to review. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n. 1 (2d Cir.2007) (recognizing that issue exhaustion is a mandatory, although not jurisdictional, requirement); see also Ali, 448 F.3d at 518 (holding that this Court lacks jurisdiction to review the BIA’s “entirely discretionary” decision to decline to reopen proceedings sua sponte). 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 *49 of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).