Wan Lu v. Atty Gen USA

Filing 3110168355

Wan Lu v. Atty Gen USA

Doc. 3110168355 Att. 1

Case: 09-1958

Document: 003110168355

Page: 1

Date Filed: 06/03/2010

NOT PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT ___________ N o . 09-1958 ___________ W A N TAO LU, Petitioner v. A T T O R N E Y GENERAL OF THE UNITED STATES, R e sp o n d e n t ___________________________________ O n Petition for Review of an Order of the B o a rd of Immigration Appeals (A g e n c y No. A70-902-949) Im m ig ratio n Judge: William P. Greene, Jr. ____________________________________ S u b m itte d Under Third Circuit LAR 34.1(a) A p ril 7, 2010 B e f o re : SCIRICA, Chief Judge, SMITH and WEIS, Circuit Judges O p in io n filed: April 12, 2010 ___________ O P IN IO N ___________ P E R CURIAM. W a n Tao Lu seeks review of the Board of Immigration Appeals' ("BIA") d e n ia l of his motion to reopen proceedings. Because we conclude that the BIA did not a b u s e its discretion in denying that motion, we will deny Lu's petition for review.

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Case: 09-1958

Document: 003110168355

Page: 2

Date Filed: 06/03/2010

I. P e titio n e r Wan Tao Lu, a citizen of the People's Republic of China, entered th e United States without inspection in 1993. He applied for asylum, withholding of re m o v a l, and protection under the Convention Against Torture ("CAT"), claiming p o litic a l and religious persecution as a Christian living in China. Lu failed to appear for h is hearing, and the Immigration Judge ("IJ") ordered him removed in absentia on D e c em b e r 21, 1995. Lu, through counsel, filed a motion to rescind that order, claiming th a t New York Morman and Associates Corp. ("NYMA") advised him not to appear.1 He fu rth er claimed that he had filed a change of address form, which implied a request for a c h a n g e of venue. The IJ denied the motion on May 15, 1996, finding that Lu's claims did n o t amount to "exceptional circumstances," and that there was no basis to conclude that L u 's change of address form implicitly requested a change of venue. Lu appealed the IJ's d e c is io n to the BIA, claiming ineffective assistance of counsel. The BIA dismissed the a p p e al on December 30, 1999, finding that it could not conclude that NYMA had ever re p re se n te d Lu, and that Lu failed to establish ineffective representation and prejudice re s u ltin g therefrom.

Lu first described NYMA as a service for Chinese speakers, but now describes it as a tra v e l agency. He states that he engaged NYMA to represent him through his asylum p ro c e ed in g s . He claims that because he did not speak English, he did not understand the d if f e re n c e between a travel agency and an attorney. 2

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Case: 09-1958

Document: 003110168355

Page: 3

Date Filed: 06/03/2010

L u filed his second counseled motion to reopen proceedings with the BIA in S ep tem b er 2008 based on ineffective assistance of counsel and changed country c o n d itio n s in China. On March 11, 2009, the BIA denied the motion. Lu filed a timely p e titio n for review. II. W e have jurisdiction under 8 U.S.C. § 1252(a) to review the denial of Lu's m o tio n to reopen.2 We review the denial of a motion to reopen for abuse of discretion. L iu v. Att'y Gen., 555 F.3d 145, 148 (3d Cir. 2009). Under this standard, we may reverse th e BIA's decision only if it is "arbitrary, irrational, or contrary to law." Sevoian v. A s h c ro f t, 290 F.3d 166, 174 (3d Cir. 2002). In general, motions to reopen must be filed within ninety days from the date " th e final administrative decision was rendered." 8 C.F.R. § 1003.2(c)(2). This time lim ita tio n does not apply if the movant seeks reopening "based on changed circumstances a ris in g in the country of nationality or in the country to which deportation has been

There is some question whether venue is proper in this case. Petitions for review of im m ig ra tio n cases are properly filed in "the court of appeals for the judicial circuit in w h ich the immigration judge completed the proceedings." 8 U.S.C. § 1252(b)(2). In this c a se , the proceedings were conducted by an IJ sitting in Baltimore, Maryland, which lies in the Fourth Circuit. Following the BIA's denial of his 2008 motion to reopen, Lu filed h is petition for review in this Court. Neither party has objected to venue or addressed it w h a ts o e v e r, and we see no reason to transfer the case to the Fourth Circuit. See B o n h o m e tre v. Gonzales, 414 F.3d 442, 446 n.5 (3d Cir. 2005) (noting that venue is not jurisd iction al and declining to transfer case where the parties' presentations in this Court w e re complete). It appears that neither party would be prejudiced, and we have no reason to believe that the Fourth Circuit would be a more convenient venue for the parties. 3

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Document: 003110168355

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Date Filed: 06/03/2010

o rd e re d , if such evidence is material and was not available and could not have been d is c o v e re d or presented at the previous hearing." 8 C.F.R. § 1003.2(c)(3)(ii). III. L u claims that the BIA abused its discretion when it denied his motion to reo p en based on ineffective assistance of counsel. The BIA correctly noted that Lu's c o n te n tio n s regarding NYMA's advice formed the basis of his unsuccessful 1996 motion to rescind.3 The BIA also correctly concluded that, to the extent Lu sought re c o n sid e ra tio n of the BIA's adjudication of that motion in 1999, the request was u n tim e ly, see 8 U.S.C. § 1229a(c)(6)(B), as was any request to rescind the in absentia o rd e r based on "new" evidence that he filed a complaint against NYMA. See § 1 2 2 9 a (b )( 5 )( C ). Lu next claims that the BIA erred in concluding that he failed to establish p rim a facie eligibility for asylum, based on a fear of future persecution, namely, forced s te riliz a tio n . We agree that Lu failed to demonstrate changed circumstances in China that m a te ria lly affect his eligibility for asylum. See 8 C.F.R. § 1003.2(c)(3)(ii). Since living in the United States, Lu and his wife have had two children. The BIA reasonably relied

As the Attorney General points out, to the extent that Lu argues that his claim meets th e standard in either Matter of Compean, Bangalay & J-E-C, 24 I. & N. Dec. 710 (A.G. 2 0 0 9 ) or Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988) (reinstated following In re C o m p e a n , Bangaly & J-E-C-, 25 I. & N. Dec. 1 (A.G. 2009), his claim is without merit. The BIA first adjudicated his ineffective assistance of counsel claim in 1999, prior to C o m p ea n I. 4

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Case: 09-1958

Document: 003110168355

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Date Filed: 06/03/2010

u p o n past decisions to reject Lu's argument that returning to China with two foreign-born ch ild ren would result in his persecution. See Liu, 555 F.3d at 149-50 (quoting the BIA's f in d in g in Matter of J-W-S-, 24 I. & N. Dec. 185, 189-91 (BIA 2007) that "the Chinese g o v e rn m e n t does not have a national policy of requiring forced sterilization of a parent w h o returns with a second child born outside of China"). Furthermore, the birth of his c h ild re n merely establishes that Lu's personal circumstances have changed, and is in s u f f ic ie n t to support reopening. See Liu, 555 F.3d at 148. A s evidence of changed circumstances in China, Lu presented a statement p u rp o rte d ly issued by the Family Planning Office of Houyu Township, Changle City. (A.R. 300.) Lu claimed that the statement was a response to an inquiry made by his father in to his "situation." (A.R. 4, 300.) However, Lu did not present a sworn statement from h is father, and failed to authenticate the Changle City statement in any way. See 8 C.F.R. § 287.6. While we have held that failure to authenticate under § 287.6 does not warrant " p e r se exclusion of documentary evidence, and a petitioner is permitted to prove a u th e n tic ity in another manner," Lu's failure to authenticate his evidence in any manner u n d erm ines its evidentiary value. Chen v. Gonzales, 434 F.3d 212, 218 n.6 (3d Cir. 2 0 0 5 ). We conclude that the BIA's decision to accord little weight to the Changle City s ta te m e n t is reasonable, and that it rests upon substantial evidence. The BIA also reasonably rejected Lu's evidence that purported to show that f a m ily members, including his mother, were sterilized after having more than one child.

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Case: 09-1958

Document: 003110168355

Page: 6

Date Filed: 06/03/2010

H is mother's experience was twenty-five years ago and is not representative of Lu's c irc u m s ta n c es . Moreover, her experience is not reflective of changed conditions of C h in a . Similarly, the BIA found that Lu's background materials on China, including a 2 0 0 3 affidavit by demographer John Aird, show merely China's ongoing effort to enforce its one-child policy. Cf. Zheng v. Att'y Gen., 549 F.3d 260, 267 n.4 (3d Cir. 2008) ("We h av e rejected Aird's position."). Lu offers nothing to convince us that the BIA's a ss e ss m e n t was an abuse of discretion. In sum, the BIA properly concluded that Lu has not shown changed c irc u m s ta n c e s in China to satisfy the exception to the time limitation for filing a motion. 8 C.F.R. §§ 1003.2(c)(2), (3)(ii). Moreover, we agree that even if Lu had demonstrated c h a n g e d country conditions, he failed to demonstrate prima facie eligibility for relief. Accordingly, we will deny the petition for review.

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