Yujin Quan v. Attorney General United State

Filing

NOT PRECEDENTIAL OPINION Coram: FUENTES, CHAGARES and RESTREPO, Circuit Judges. Total Pages: 5. Judge: FUENTES Authoring.

Case: 15-2111

Document: 003112396360

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Date Filed: 09/01/2016

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 15-2111
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YUJIN QUAN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
________________
On Petition for Review of a Final Order of the Board of Immigration Appeals

Immigration Judge: Hon. Annie S. Garcy
(A089-254-418)
________________
Submitted under Third Circuit LAR 34.1(a)
on March 14, 2016
Before: FUENTES, CHAGARES, and RESTREPO, Circuit Judges
(Opinion Filed: September 1, 2016)
________________
OPINION*
________________

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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FUENTES, Circuit Judge.
Petitioner Yujin Quan seeks review of an order of the Board of Immigration
Appeals (“BIA”) denying her motion to reopen removal proceedings. For the following
reasons, we will deny the petition.
I.
Quan, a citizen of the People’s Republic of China, illegally entered the United
States in 2007. After being served with a Notice To Appear in Immigration Court, Quan
conceded removability and applied for asylum. Quan’s attorney submitted an incomplete
asylum application with an accompanying personal statement that had another applicant’s
name on it.

At a February 2009 merits hearing on her asylum application, the

Immigration Judge (“IJ”) instructed Quan to file a corrected application by April 30,
2009, and rescheduled the merits hearing to “Friday, July 9, 2009.”

Immediately

thereafter, the IJ issued a corrected notice rescheduling the hearing for “Friday, July 10,
2009” and informed Quan’s attorney of the change telephonically. Quan did not file a
corrected application, and her attorney did not show up in court on either July 9 or July
10. On July 10, 2009, the IJ denied Quan’s application as abandoned and issued a final
order of removal.
Quan did not appeal the IJ’s decision, did not move to reconsider, and did not
move to reopen within 90 days as the law requires. Instead, five months after the
decision, Quan retained different counsel, and in March 2010—eight months after the IJ’s
decision—Quan filed an untimely motion to reopen, along with the corrected asylum
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application that should have been filed almost one year earlier. She claimed that the
mistakes in her initial asylum application were the result of a “clerical error,” but did not
argue that her first attorney provided ineffective assistance. The IJ denied the motion as
untimely and refused to exercise her sua sponte authority to reopen because Quan had
been dilatory in failing to approach her second attorney until almost five months after the
first decision. Quan then retained a third attorney and appealed the denial of the motion
to reopen. The BIA affirmed in April 2012, holding that the motion to reopen was
untimely and that Quan could not introduce ineffective assistance arguments that had not
been raised below. The BIA also concluded that even if it were to consider the asylum
application on the merits, Quan had not established prima facie eligibility for asylum
relief. Quan did not appeal this ruling.
Almost three years later, in January 2015, Quan—now on her fourth attorney—
filed a motion to reopen with the BIA, essentially asking it to revisit the April 2012
ruling. Although motions to reopen a BIA proceeding must be filed within 90 days of the
decision, Quan argued that the filing period should be equitably tolled because she
received ineffective assistance of counsel from all three of her prior attorneys. The BIA
rejected this argument and denied the motion as untimely, explaining that Quan had
offered no reasonable explanation for waiting almost three years to file the motion to
reopen. This petition for review followed.

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II.1
We review the BIA’s denial of a motion to reopen2 for abuse of discretion, and
will only reverse if the decision was “arbitrary, irrational, or contrary to law.”3

There is

no dispute that Quan’s January 2015 motion to reopen was untimely.4 The time limit for
filing a motion to reopen can be equitably tolled, however, if the delay was occasioned by
ineffective assistance of counsel.5

But the alien must show that she exercised due

diligence over the entire period for which tolling is sought.6
We will assume that Quan’s first counsel rendered ineffective assistance in
connection with her 2009 asylum application.

But that attorney played no role in

litigating the April 2012 BIA decision that is the subject of the instant petition to reopen.
Quan does not explain how, if at all, she received ineffective assistance from the attorney
who handled the 2012 BIA appeal, much less how any such ineffectiveness resulted in
Quan’s failure to timely move to reopen that proceeding.

Nor has she adequately

explained why she waited almost three years after the April 2012 decision to seek
1

The BIA had jurisdiction to review Quan’s motion to reopen under 8 C.F.R. § 1003.2(a)
and (c). We have jurisdiction to review the BIA’s order under 8 U.S.C. § 1252(a).
2
We do not understand Quan to be seeking direct review of the BIA’s April 2012
decision affirming the IJ’s denial of her March 2010 motion to reopen. Because Quan
never petitioned for review of that decision, we lack jurisdiction to review it. See 8
U.S.C. § 1252(b)(1) (alien seeking review of final removal order must file a petition for
review within 30 days of the order); Stone v. INS, 514 U.S. 386, 405 (1995) (provisions
in Immigration and Nationality Act specifying timing of review are jurisdictional in
nature).
3
Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004) (internal quotation marks omitted).
4
See 8 C.F.R. § 1003.2(c)(2) (motion to reopen must be filed “no later than 90 days after
the date on which the final administrative decision was rendered in the proceeding sought
to be reopened”); Pet. Br. 7-10.
5
Mahmood v. Gonzales, 427 F.3d 248, 251-52 (3d Cir. 2005).
6
Alzaarir v. Attorney General, 639 F.3d 86, 90 (3d Cir. 2011).
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reopening. All she says is that the law office that handled her 2012 BIA appeal told her
“the chances of success on appeal to [the] federal appeals court were very low,” and that
thereafter she “consulted several more attorneys” who told her they “could not assist”
her.7 Quan does not provide any detail about her efforts, including how many attorneys
she consulted, when she consulted them, or why they could not help her. Accordingly,
we see no legal basis for equitable tolling, and the BIA did not abuse its discretion in
determining that Quan failed to demonstrate due diligence.
III.
For the foregoing reasons, we will affirm the judgment of the BIA and deny
Quan’s petition for review.

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AR 164.
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