377 F. App'x 135

XING LIN, Petitioner, v. Eric H. HOLDER, Jr.,* United States Attorney General, Respondent.

No. 07-5212-ag.

United States Court of Appeals, Second Circuit.

May 19, 2010.

*136Michael Brown, New York, New York, for Petitioner.

Gregory G. Katsas, Assistant Attorney General, Civil Division; Susan K. Houser, Senior Litigation Counsel; John J.W. Ink-eles, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

PRESENT: REENARAGGI, RICHARD C. WESLEY, PETER W. HALL, Circuit Judges.

SUMMARY ORDER

Petitioner, Xing Lin, a native and citizen of the People’s Republic of China, seeks review of an October 31, 2007 order of the BIA denying as untimely his motion to reopen asylum proceedings resolved against him in 1995. In re Xing Lin, No. [ A XXX XXX XXX ] (B.I.A. Oct. 31, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

We review the BIA’s denial of Lin’s motion to reopen for abuse of discretion, see Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006), and we detect none on this record. There is no dispute that Lin’s application was untimely filed. See 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). Further, the BIA reasonably determined that Lin failed to present evidence of changed country conditions sufficient to qualify for an exception to the 90-day filing deadline. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii); see also Jian Hui Shao v. Mukasey, 546 F.3d 138, 169-72 (2d Cir.2008) (upholding denial of motion to reopen based on similar evidence); Wei Guang Wang v. BIA, 437 F.3d 270, 273 (2d Cir.2006) (endorsing BIA conclusion that birth of children in U.S. is change in personal circumstances, not change in country conditions).

To the extent Lin argues that the alleged ineffective assistance of his former *137attorney warranted reopening the proceedings, the claim is without merit. Ineffective assistance of counsel is not a sufficient basis, on its own, to excuse a late filing, see Cekic v. INS, 485 F.3d 167, 170 (2d Cir.2006), and Lin does not argue that he was entitled to equitable tolling of the filing deadline, see Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998) (“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.”).1 In any event, because Lin failed to raise the issue of equitable tolling before the BIA, any such argument remains unexhausted. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 121-22, 124 (2d Cir.2007) (holding that issue exhaustion is mandatory, though not jurisdictional, requirement).

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

Xing Lin v. Holder
377 F. App'x 135

Case Details

Name
Xing Lin v. Holder
Decision Date
May 19, 2010
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377 F. App'x 135

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United States

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