Bao Chen v. Attorney General United State

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: SMITH, GREENAWAY JR. and SHWARTZ, Circuit Judges. Total Pages: 5.

Case: 13-1777

Document: 003111399785

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Date Filed: 09/25/2013

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-1777
___________
BAO HUI CHEN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A072-368-829)
Immigration Judge: Honorable Frederic Leeds
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 19, 2013
Before: SMITH, GREENAWAY, JR., and SHWARTZ, Circuit Judges
(Opinion filed: September 25, 2013)
___________
OPINION
___________
PER CURIAM
Bao Hui Chen petitions for review of a decision of the Board of Immigration Appeals
(BIA). For the reasons below, we will deny the petition for review.
Chen, a native of China, entered the United States in July 2001 without a valid entry
document. In October 2003, he was charged as removable as an alien present in the United
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States without having been admitted or paroled. Chen conceded removability and applied for
asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The
IJ determined that Chen had suffered economic persecution for violating China’s family
planning policy. The IJ granted Chen asylum, and Chen withdrew his other applications.
The BIA sustained the Government’s appeal and concluded that Chen failed to show
past persecution or a well-founded fear of future persecution due to extreme economic
deprivation. It observed that Chen was able to pay off the fines imposed with loans from
friends and relatives, and was able to pay a smuggler to enter the United States. The BIA
determined that Chen had not shown that he would be persecuted based on any resistance to
the family planning policy. The BIA ordered Chen removed to China. Chen filed a petition
for review which we denied in July 2011. See C.A. No. 10-1059.
In June 2012, Chen filed a motion to reopen alleging ineffective assistance of counsel.
He argued that prior counsel failed to present a claim that he had been beaten by family
planning officials and failed to submit medical documents in support of this claim. The BIA
denied the motion as untimely on December 17, 2012. It determined that Chen had not
pursued his claim of ineffective assistance of counsel with due diligence. In addition, it
concluded that Chen had not demonstrated prejudice as he had not shown that the evidence he
sought to submit would likely change the outcome. The BIA observed that in his letters to his
former attorneys, Chen did not mention the evidence or the attorneys’ failures to submit it.
Chen then filed a motion for reconsideration which the BIA denied on February 22,
2013. It noted that the supplemental evidence did not affect its determination that reopening

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was not warranted, especially in light of Chen’s previous counsel’s response to his allegations.
Chen filed a petition for review on March 19, 2013.
We have jurisdiction pursuant to 8 U.S.C. § 1252. The Government correctly argues
that we have jurisdiction over only the February 22, 2013, decision of the BIA denying Chen’s
motion for reconsideration. The BIA’s decision denying the motion to reopen and its decision
denying the motion for reconsideration are two separate final orders. An alien may file a
petition for review from each order within thirty days of the date of the order. See Castro v.
Att’y Gen., 671 F.3d 356, 364 (3d Cir. 2012). However, filing a motion for reconsideration
does not toll the time to seek review of the earlier decision. Id. Because Chen did not file his
petition until March 19, 2013, it is timely only with respect to the BIA’s February 22, 2013,
denial of his motion for reconsideration. However, some discussion of the denial of the motion
to reopen is necessary to evaluate the BIA’s determination that Chen had not demonstrated an
error of law or fact in his motion for reconsideration. Id. at 365. We review the BIA’s denial
of a motion for reconsideration for an abuse of discretion and will generally not disturb the
BIA’s decision unless it is arbitrary, irrational, or contrary to law. Pllumi v. Att’y Gen., 642
F.3d 155, 158 (3d Cir. 2011).
In his motion to reopen, Chen had argued that his prior attorneys had provided
ineffective assistance by failing to present the fact that Chen sustained a loss of hearing after
being beaten by family planning officials in 1992. In support, he submitted medical records
from China, an affidavit from his wife, the complaints sent to his prior attorneys, and one
attorney’s response. A.R. at 86-136. As noted above, the BIA denied the motion as untimely

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because Chen had not pursued his claim of ineffective assistance of counsel with due diligence
and determined that Chen had not shown that the new evidence would change the outcome.
In his motion to reconsider, Chen submitted the same exhibits with a new affidavit.
A.R. at 6-69. He did not include any legal argument. In his new affidavit, Chen provided new
details to try to show that he exercised due diligence. He described the timeline of hiring his
current attorney, obtaining the exhibits submitted, and filing the motion to reopen. He did not
challenge or address the BIA’s alternative holding that he had not shown prejudice.1
A motion to reconsider “shall state the reasons for the motion by specifying the errors of
fact or law in the prior Board decision and shall be supported by pertinent authority.” 8 C.F.R.
§ 1003.2(b)(1). Chen did not allege an error of fact or law by the BIA; rather, he sought to
provide additional facts and argument on the issue of due diligence. Nor do we see any errors
by the BIA. As noted by the BIA, Chen did not describe the specific allegation of ineffective
assistance in the complaint sent to the attorney who represented him first, Richard Tarzia. He
vaguely alleged that Tarzia did not interview him or review his asylum application and that this
deprived Chen of a chance to present all his facts for consideration. Chen did not mention the
omission of any evidence of being beaten by Chinese family planning officials.

Tarzia

responded and emphatically denied Chen’s allegations. He stated that the asylum application
was reviewed with Chen several times and was filed with Chen’s approval. A.R. at 49. In the
proposed complaint sent to the second former counsel, Theodore Cox, Chen again did not
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Chen did not mention the alleged beating in his own affidavits. A.R. at 9-14, 91-94. While
the medical records submitted indicate that his right ear drum was damaged due to vibration,
his wife stated that the injury was to the left ear drum from Chen’s being beaten. A.R. at 22,
32. Chen never mentioned the alleged assault in the hearing before the IJ. Nor did his wife
mention it in her earlier affidavit. A.R. at 427.
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mention any evidence of being beaten by Chinese family planning officials.

A.R. at 53-54.

Cox did not respond to Chen’s letter.
The BIA did not abuse its discretion in denying the motion to reconsider. Accordingly,
we will deny the petition for review.

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