
    HUI XU, Petitioner, v. Loretta E. LYNCH, United States Attorney General, Respondent.
    No. 13-2433.
    United States Court of Appeals, Second Circuit.
    Aug. 28, 2015.
    Charles Christophe, Christophe Law Group, P.C., New York, NY, for Petitioner.
    Stuart F. Delery, Assistant Attorney General; Song Park, Senior Litigation Counsel; Sunah Lee, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.
    PRESENT: ROSEMARY S. POOLER, DEBRA ANN LIVINGSTON, and RAYMOND J. LOHIER, JR., Circuit Judges.
    
      
       Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Loretta E. Lynch is automatically substituted for former Attorney General Eric H. Holder, Jr., as the Respondent in this case.
    
   SUMMARY ORDER

Petitioner Hui Xu, a native and citizen of the People’s Republic of China, seeks review of the May 31, 2013, decision of the BIA denying his motion to reopen. In re Hui Xu, No. [ AXXX XXX XXX ] (B.I.A. May 31, 2013). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

The BIA’s denial of Xu’s motion to reopen was not an abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (per curiam). Absent certain enumerated circumstances which are not present here, an alien may generally move to reopen no later than 90 days after the date of the final administrative decision. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). There is no dispute that Xu’s 2013 motion was untimely because his final § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). In some instances, however, the agency may equitably toll the 90 days if an alien demonstrates ineffective assistance of counsel and that he exercised due diligence in pursuing his claims 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 [wa]s filed.” Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir.2008).

The BIA reasonably found that Xu’s ten-year delay in raising ineffective assistance, a claim Xu admits was apparent at the time of his 2002 hearing, did not reflect due diligence. See Jian Hua Wang v. B.LA, 508 F.3d 710, 715 (2d Cir.2007) (per curiam) (citing several cases finding that a petitioner has failed to demonstrate due diligence where he or she waited two years or longer to take steps to reopen a proceeding). Despite Xu’s assertion that he lacked understanding of English and U.S. laws, he did not explain why he did not simply seek new counsel to articulate the claim for him. The BIA therefore did not err in declining to toll the filing deadline, and consequently did not abuse its discretion in denying Xu’s motion to reopen as untimely. See Rashid, 533 F.3d at 131-32; Ali, 448 F.3d at 517.

To the extent that Xu challenges the BIA’s denial of sua sponte reopening, we dismiss the petition for review because we lack jurisdiction to consider the discretionary determination that Xu did not demonstrate exceptional circumstances. See Ali, 448 F.3d at 518.

For the foregoing reasons, the petition for review is DENIED in part and DISMISSED in part. 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 of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).  