Yi Xian F-Guan v. Gonzales

SUMMARY ORDER Yi Xian F-Guan, through counsel, petitions for review of a December 16, 2002 BIA order dismissing her appeal for lack of jurisdiction. F-Guan did not file with the BIA a notice of appeal within 30 days after the Immigration Judge’s (“IJ’s”) May 29, 1998 decision, as required by 8 C.F.R. § 1003.38(b). F-Guan, through new counsel, filed a notice of appeal with the BIA on September 11, 2002, arguing in an accompanying motion that the notice of appeal should be accepted because F-Guan’s previous counsel was ineffective for failing to properly pursue appeal and this deficiency prevented F-Guan from timely filing a notice of appeal. We presume the parties’ familiarity with the remaining facts and procedural history. F-Guan argues that she complied with the procedures of Matter of Lozada, 19 I. & N. Dec. 637, 1988 WL 235454 (B.I.A. 1988), for presenting a claim of ineffective assistance of counsel to the BIA. This claim in Matter of Lozada was brought in a motion to reopen proceedings, not in a motion to support a late-filed notice of appeal. Id. at 638. Motions to reopen proceedings are the “vehicle commonly used to redress claims of ineffective assistance of counsel,” Iavorski v. INS, 232 F.3d 124, 129 (2d Cir.2000), but F-Guan has not brought one here. And F-Guan cites no authority that the deadline for filing a notice of appeal is not jurisdictional and is subject to equitable tolling. See id. (holding that equitable tolling does not apply to jurisdictional bars); Matter of Escobar, 18 I. & N. Dec. 412, 412, 1983 WL 183250 (B.I.A.1983) (addressing the timeliness of the notice of appeal as a question of jurisdiction). Because F-Guan provides no argument that the deadline for filing a notice of appeal can be equitably tolled, we DENY the petition for review. Having completed our review, the pending motion for a stay of removal in this [293] petition is DENIED 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(d)(1).