Zhou Huan Mei v. Immigration & Naturalization Service

MEMORANDUM **

Zhow Huan Mei petitions for review of the Board of Immigration Appeals’ (“BIA’s”) denial of his second motion to reopen his deportation proceedings. Mei concedes that his motion before the BIA was time- and number-barred under 8 C.F.R. § 3.2 (c)(2); however, he argues that the ineffective assistance of his former counsel entitles him to equitable tolling. See Socop-Gonzalez v. INS, 272 F.3d 1176, 1181, 1193 (9th Cir.2001) (en banc); Varela v. INS, 204 F.3d 1237, 1240 (9th Cir.2000).

Mei contends that his first and second attorneys should have sought a hardship waiver on his behalf during his original deportation proceedings, see 8 U.S.C. § 1186A(c)(4)(A), and that his subsequent attorney should have raised the failure to do so as ineffective assistance supporting his first motion to reopen. Assuming without deciding that the failure to seek a hardship waiver constitutes deficient performance and that Mei has acted diligently throughout these proceedings, Mei fails to demonstrate any prejudice. There is no evidence in the record that Mei was eligible for a hardship waiver in the first place. Mei adduces no evidence that his deportation would have caused an “extreme…