
    QIGUANG LU, aka Qi Guang Lu, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
    No. 11-92 NAC.
    United States Court of Appeals, Second Circuit.
    Jan. 9, 2014.
    Lee Ratner, Law Offices of Michael Brown, New York, N.Y., for Petitioner.
    
      Tony West, Assistant Attorney General; Susan K Houser, Senior Litigation Counsel; Christina J. Martin, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.
    PRESENT: RALPH K. WINTER, ROSEMARY S. POOLER, and ROBERT D. SACK, Circuit Judges.
   SUMMARY ORDER

Qiguang Lu, a native and citizen of the People’s Republic of China, seeks review of a December 29, 2010, decision of the BIA denying his motion to reopen. In re Qiguang Lu, No. [ AXXX XXX XXX ] (B.I.A. Dec. 29, 2010). We assume the parties’ familiarity with the underlying facts and procedural history of this case.

The applicable standards of review are well-established. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008). An alien may file only one motion to reopen within 90 days of the agency’s final administrative decision. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). Lu’s motion to reopen was indisputably untimely and number-barred because it was filed more than eight years after the agency’s final order of removal and it was his third motion to reopen.

There are no time and numerical limitations for filing a motion to reopen if it is “based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). As the BIA found, Lu’s activities in the United States did not constitute changed conditions in China. See Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir.2005). Additionally, the BIA reasonably concluded that Lu failed to demonstrate material changed conditions in China since the time of his 2000 proceedings before the immigration judge because the evidence he submitted demonstrated that Falun Gong practitioners have been continuously mistreated in China since the Chinese government began its crackdown against that group in 1999. See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii). Moreover, the BIA reasonably relied on the underlying adverse credibility determination to decline to credit Lu’s individualized evidence that government officials in China had discovered his activities in the United States. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-49 (2d Cir.2007). Accordingly, the BIA did not err in finding that Lu failed to demonstrate material changed country conditions excusing the untimely and number-barred filing of his motion.

The BIA also did not err in declining to equitably toll the time period for filing the motion to reopen based on his ineffective assistance of counsel. In order to warrant equitable tolling, even assuming that a movant demonstrated that prior counsel was ineffective, an alien is required to demonstrate “due diligence” in pursuing his claim 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.” Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir.2008); see also Cekic v. INS, 435 F.3d 167, 170 (2d Cir.2006). The BIA did not err in finding that Lu failed to demonstrate that he exercised due diligence because, as Lu admits in his brief, he did not pursue his ineffective assistance of counsel claim from 2003 to 2010. See Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir.2007).

Finally, the BIA did not err in noting that Lu was not eligible for an exception to the procedural limitations applicable to his motion to reopen based on his purported eligibility to adjust status. See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3); see also Matter of Yauri, 25 I. & N. Dec. 103,105 (B.I.A.2009).

For the foregoing reasons, the petition for review is DENIED. The pending motion for a stay of removal in this petition is DISMISSED as moot.  