Li v. Atty Gen USA

Filing 3010137331

Case: 08-2023

Document: 003110137331

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Date Filed: 05/10/2010

NOT PRECEDENTIAL U N IT E D STATES COURT OF APPEAL F O R THE THIRD CIRCUIT

No. 08-2023

FENG ZHI LI; ZHEN HUA CHEN; Y U FANG CHEN; ZHU YU CHEN, Petitioners v. A T T O R N E Y GENERAL OF THE UNITED STATES, R e sp o n d e n t

On Petition for Review from an Order of the B o a rd of Immigration Appeals (B IA -1 : A96-109-436; B IA -1 : A96-109-435; B IA -1 : A96-109-434; B IA -1 : A96-109-433) Im m ig ra tio n Judge: Hon. Grace A. Sease

Submitted Pursuant to Third Circuit LAR 34.1(a) A p ril 13, 2010 B E F O R E : FISHER, HARDIMAN and COWEN, Circuit Judges (F ile d : May 10, 2010 )

OPINION

COWEN, Circuit Judge.

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F e n g Zhi Li ("Petitioner"), and her children, Zhen Hua Chen, Yu Fang Chen, and Z h u Yu Chen (as derivative beneficiaries), petition for review of an order of the Board of I m m ig r a tio n Appeals ("BIA") denying a motion to reopen. For the foregoing reasons, th is petition will be denied. I. P e titio n e r and her children, all natives of Fujian Province and citizens of the P e o p le 's Republic of China, were smuggled out of China in 2002. Petitioner was e v e n tu a lly placed in removal proceedings, and, in 2004, she requested asylum, w ith h o ldin g of removal, and relief under the United Nations Convention Against Torture (" C A T " ) on behalf of herself and her children. Among other things, Petitioner claimed th a t her husband was forcibly sterilized in China and that she feared she would be forcibly s te riliz e d for violating China's one-child policy if she were forced to return to her native c o u n t r y. Following an August 2, 2004 hearing at which she was represented by counsel, the Im m ig ra tio n Judge ("IJ") denied the requested relief. The IJ initially found that re m o v a b ility was established by clear and convincing evidence in the record. Stating that s h e had "taken into account such factors as [Petitioner's] demeanor, [as well as] the ratio n ality and internal consistency and inherent persuasiveness of her testimony," the IJ re lie d on a number of specific grounds to make an adverse credibility determination a g a in s t Petitioner. (AR201.) The IJ further indicated that Petitioner's impetus for coming

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to the United States "appears to be more economic than anything else" and agreed with the g o v e rn m e n t's attorney "that bringing her three children through to the United States th ro u g h a smuggler is an extraordinarily dangerous process." (AR205.) Finally, she d eterm ined that there was nothing to indicate that Petitioner would be subjected to torture in her home country. Petitioner's then-counsel appealed to the BIA, but this appeal was dismissed in a p e r curiam decision dated January 24, 2005. The BIA found that the testimony and d o c u m e n ts in the record, "[e]ven if insufficient to support a sweeping adverse credibility f in d in g under applicable Circuit law," still provided the IJ "with legitimate reason to q u estio n the veracity of the [Petitioner's] claim." (AR300 (citation omitted).) The BIA s p e c if ic a lly noted the existence of "discrepancies between the [Petitioner's] testimony and s u p p o r tin g documents describing the circumstances surrounding the [Petitioner's] h u s b a n d 's alleged sterilization." (Id. (citations omitted).) In turn, the materials submitted o n appeal failed to address or provide a convincing explanation for the discrepancies. Stating that the IJ did not make a clearly erroneous finding, the BIA declined to set aside th e IJ's determination that Petitioner failed to satisfy the respective burdens of proof a p p lic a b le to claims for asylum and withholding of removal. The BIA further held that P e titio n e r failed to identify any reversible error in the IJ's conclusion that she failed to m ee t the burden for CAT relief. Finally, the BIA stated that Petitioner's claim that the IJ ab u sed her discretion by denying a continuance motion was without merit insofar as the IJ

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h e rs e lf conducted "a full and fair hearing," the Petitioner "has not articulated or identified p re ju d ic e stemming from the [IJ's] denial" or otherwise shown that the "outcome of her c a se would have been different had the motion been granted," and the record on the whole su p p o rted the IJ's resolution. (Id. (citation omitted)) N o petition for review was filed with this Court with respect to the BIA's January 2 4 , 2005 decision. On June 7, 2006, Petitioner did file a counseled motion to reconsider w ith the BIA. In a per curiam decision dated August 21, 2006, the BIA dismissed this m o tio n . It found the motion to be untimely, adding that there were no exceptional c irc u m sta n c e s warranting sua sponte reconsideration on its part. According to the BIA, th e motion "has been filed on the [Petitioner's] behalf by the same attorney who re p re se n te d [Petitioner] on appeal," this attorney was served with a copy of the decision d is m is s in g the administrative appeal on January 24, 2005, and he has nevertheless "offered n o explanation for why he waited well over a year to assert error in our decision." (AR284 (f o o tn o te omitted)).) The BIA nevertheless went on to consider the IJ's credibility d eterm inatio n again, stating that: "Under this [clearly erroneous] standard, which we are b o u n d by the regulation to apply, although there may be isolated aspects of the Im m ig ra tio n Judge's adverse credibility finding that we may not have relied upon if we w e re the fact-finding authority, we may not reverse it unless we are left with the definite a n d firm conviction that the ultimate conclusion is wrong." (AR284 n.1.) Petitioner o b ta in e d new counsel and filed a petition for review of the BIA's April 21, 2006 decision

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o n the grounds that her prior counsel was ineffective; this Court dismissed the petition on O c to b e r 19, 2007 for lack of jurisdiction as ineffective assistance had not been raised b e lo w . See Li v. Attorney General, C.A. No. 06-4155. O n January 16, 2008, Petitioner, represented by her new attorney, filed a motion to re o p e n with the BIA. She claimed both changed country conditions as well as ineffective assistan ce of counsel. The BIA denied the motion to reopen on March 7, 2008. The BIA e x p la in e d that Petitioner failed to demonstrate a change in country conditions. It then c o n c lu d e d that, while complying "with the procedural requirements of Matter of Lozada, 1 9 I&N Dec. 637 (BIA 1988)," the Petitioner failed to demonstrate that her former co u n sel's performance was deficient or otherwise resulted in prejudice. (AR16.) The BIA p ro v id e d the following explanation: . . . . We note that the [Petitioner's] December 24, 2007, affidavit submitted w ith the present motion and filed with her disciplinary complaint attests that " th e Chinese Birth Control officials had forced me to undergo sterilization w h ile I was in China after giving birth to three children." The affidavit m a k e s no reference to her husband, and concludes with the statement that th e affidavit "has been read back to me in the Mandarin dialect of Chinese w h ic h I am fluent in." However, the respondent testified before the Im m ig ra tio n Judge that it was her husband who was sterilized rather than h e r s e lf (Tr. 35-36), a fundamentally different factual claim that is also r e f e re n c e d elsewhere by counsel in her present motion papers. (Id.) Petitioner filed a counseled petition for review with the Court with respect to this B IA order denying the motion to reopen. She further moved for a stay of removal, but her m o tio n was denied on September 18, 2008. Petitioner filed another stay motion, which, 5

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c o n stru e d as a motion for reconsideration of the order denying her motion for stay, was lik e w is e denied on January 27, 2009. O n April 4, 2008, Petitioner, through counsel, moved in the BIA for reconsideration o f the agency's reopening decision. The BIA denied this motion on May 2, 2008. It noted th a t Petitioner claimed in her Lozada affidavit that her former attorney did not pursue ju d ic ia l review of the initial January 24, 2005 decision dismissing her administrative a p p e a l because her relatives did not pay for his services. However, "[t]he affidavit also re f le c ts that after the dismissal of the appeal, the lead respondent did not consult with the a tto rn e y for more than 4 months following our decision." (AR3 (citation omitted).) The B IA stated that Petitioner failed to provide any evidence that, after the January 24, 2005 d e c is io n , either she or her relatives consulted with, entered into an agreement with, or had an y contact with this attorney before the expiration of the filing deadlines for a re c o n sid e ra tio n motion or a review petition. The BIA ultimately stood by its prior finding o f a failure to demonstrate prejudice, adding that the "explanation for a factual error in the le a d respondent's affidavit pertaining to whether the lead respondent or her husband was s te riliz e d in China would not alter our decision." (Id.) Petitioner never filed a petition for re v ie w with respect to this May 2, 2008 reconsideration ruling by the BIA. II. B e c au s e Petitioner filed the requisite petition in a timely fashion, we have ju ris d ic tio n to review the BIA's March 7, 2008 decision denying her motion to reopen.

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S e e , e.g., 8 U.S.C. § 1252. We, however, lack jurisdiction to review the BIA's other d e c is io n s , respectively dated May 2, 2008, and January 24, 2005, because Petitioner failed to file a timely petition of review as to such rulings. See, e.g., id.; Stone v. INS, 514 U.S. 3 8 6 , 405-06 (1995). We likewise previously dismissed on jurisdictional grounds a petition to review the BIA's August 21, 2006 decision. T h is Court has indicated that "[a] claim of ineffective assistance of counsel in re m o v a l proceedings is cognizable under the Fifth Amendment­i.e., as a violation of that a m e n d m e n t's guarantee of due process." Fadiga v. Attorney General, 488 F.3d 142, 155 (3 d Cir. 2007) (citations omitted). An alien asserting a denial of due process "must show (1 ) that he was `prevented from reasonably presenting his case' and (2) that `substantial p rejud ice' resulted." Id. (quoting Khan v. Attorney General, 448 F.3d 226, 236 (3d Cir. 2 0 0 6 )). In general, the BIA's denial of a motion to reopen is reviewed for an abuse of d is c re tio n . See, e.g., id. at 153. But "we review de novo the Board's determination of an u n d e rlyin g procedural due process claim." 1 Id. (citations omitted). I I I. P e titio n e r argues at some length that the BIA committed reversible error by failing

The government argues that Petitioner possessed no rights to effective counsel in this c iv il immigration context and that her whole ineffectiveness theory accordingly must be re jec ted as a matter of law. Because we find that the BIA properly rejected this in e f fe c tiv e n e ss theory on the substantive grounds that Petitioner failed to establish either d ef icien t performance or prejudice, we need not (and do not) consider the government's b ro a d e r argument at this time. 7

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to grant her motion to reopen pursuant to the theory of ineffective assistance of counsel. In particular, she claims that her previous attorney provided ineffective assistance before the IJ as well as before the BIA in the initial appellate proceeding challenging the IJ's ru lin g against her. She further asserts that "prior counsel failed in his responsibility to c o m m u n ic a te with Petitioners while they were in detention, subsequent to the dismissal of th e original BIA appeal." (Petitioner's Brief at 23 (emphasis omitted).) Petitioner even a rg u e s that the manner in which the BIA dealt with (or did not deal with) her various c la im s violated her right to due process under the Fifth Amendment. We conclude that the u n d e rlyin g motion to reopen was properly denied.2 W e begin with the question of whether Petitioner's lawyer provided ineffective a ss is ta n c e after the BIA's January 24, 2005 dismissal of her appeal from the IJ's initial d e c is io n denying asylum and related relief. In its subsequent May 2, 2008 decision, the B IA expressly addressed and rejected this claim. Petitioner, in turn, takes issue with the a g e n cy's reasoning, stating, inter alia, that it placed "an unfair burden on Petitioners, who w e re uneducated, indigent, illiterate, and spoke no English, to contact their attorney, while th e y were in detention." (Id. at 23 (emphasis omitted).) Nevertheless, as previously noted, w e lack jurisdiction to review the May 2, 2008 decision because Petitioner failed to file a

Petitioner also unsuccessfully sought reopening on the basis of changed country c o n d itio n s . She, however, has waived any "changed country conditions" argument by f a ilin g to raise this theory of relief in her brief. See, e.g., Nagle v. Alspach, 8 F.3d 141, 1 4 3 (3d Cir. 1993). 8

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p etitio n for review with respect to this subsequent order. In any case, even if this Court h a s jurisdiction (which it does not), we would still conclude that the BIA did not commit re v e rs ib le error here due, among other things, to the lack of any evidence indicating that e ith e r Petitioner or her relatives (who were not otherwise detained and had retained and a g re e d to pay the attorney in the first place) had any contact whatsoever with the attorney in the time period between the BIA's dismissal of the administrative appeal and the ex p iratio n of the deadlines for filing either a motion for reconsideration with the BIA or a p e titio n for review with this Court. W e also agree with Petitioner that the BIA's treatment of ineffectiveness in its M a rc h 7, 2008 decision was less than thorough. When examining a claim of ineffective a ss is ta n c e of counsel, the BIA "must at least show that it has reviewed the record and g ra sp e d the movant's claims." Filja v. Gonzales, 447 F.3d 241, 256 (3d Cir. 2006) (citing S e v o ian v. Ashcroft, 290 F.3d 166, 178 (3d Cir. 2002)). In Filja, the BIA failed to meet its p ro c e d u ra l review obligations by rejecting the petitioner's ineffective assistance argument in a "formulaic statement that `we have carefully reviewed the record,'" followed by one p a ra g ra p h in which its only substantive finding was that the petitioner "failed to d e m o n s tra te that his former counsel's performance was so inadequate that it prejudiced the o u tcom e of the proceedings." Id. Because the BIA's opinion contained no statements in d ic a tin g it had in fact carefully reviewed the record, or grasped Filja's claims, it was in a d e q u ate to survive appellate review. Id; see also Kayembe v. Ashcroft, 334 F.3d 231,

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2 3 8 (3d Cir. 2003) ("When deficiencies in the BIA's decision make it impossible for us to m ea n ing fu l ly review its decision, we must vacate that decision and remand so that the BIA c a n further explain its reasoning." (citation omitted)). In its March 7, 2008 decision, the BIA similarly provided a curt, one-paragraph a n a lys is of Petitioner's ineffective assistance claims in this case. The BIA stated "the [ P e titio n e r] ha[s] not adequately demonstrated that [her] former counsel's performance w a s deficient or that [she] suffered any prejudice." (AR16.) The BIA's conclusion that P e titio n e r failed to demonstrate any deficiency in her prior counsel's performance is a c o n c lu s o ry "formulaic statement" without further support demonstrating a review of P e titio n e r's arguments or the record. If this were the sole basis for the BIA's denial of the in e f f e c tiv e assistance claims, it would be inadequate under Filja and would necessitate re m a n d . But this is not the only basis for the decision. The BIA also concluded that P e titio n e r failed to show prejudice. As support for this conclusion, the BIA noted the c o n f lic tin g testimony in Petitioner's affidavit in support of her motion to reopen as further re in f o rc e m e n t of the IJ's adverse credibility determination. Specifically, in her affidavit, P e titio n e r averred that she had been forcibly sterilized while in China, which contradicted h e r prior statements that it was her husband who had been forcibly sterilized and that she h e rse lf feared forcible sterilization if she were returned to China. Because this in c o n sis te n c y goes to the heart of Li's claim, the BIA did not err when it held that Li failed to show prejudice.

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IV . W e accordingly will deny the petition for review.

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