Jiang v. Garland ( 2022 )

20-284
Jiang v. Garland
BIA
A087 643 159
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED
AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS
COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A
PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 20th day of October, two thousand twenty-
5 two.
6
7 PRESENT:
8 PIERRE N. LEVAL,
9 RICHARD C. WESLEY,
10 RICHARD J. SULLIVAN,
11 Circuit Judges.
12 _____________________________________
13
14 XIA JIN JIANG,
15 Petitioner,
16
17 v. 20-284
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Margaret W. Wong, Margaret Wong &
25 Associates LLC, Cleveland, OH.
26
27 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
28 Assistant Attorney General; Linda
29 S. Wernery, Assistant Director,
1 Monica M. Twombly, Trial Attorney,
2 Office of Immigration Litigation,
3 United States Department of
4 Justice, Washington, DC.
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Xia Jin Jiang, a native and citizen of the
10 People’s Republic of China, seeks review of a December 27,
11 2019 decision of the BIA denying her motion to reopen her
12 removal proceedings. See In re Xia Jin Jiang, No. A087 643
13 159 (B.I.A. Dec. 27, 2019). We assume the parties’
14 familiarity with the underlying facts and procedural history.
15 Our review is limited to the BIA’s denial of the motion
16 to reopen removal proceedings, see Kaur v. BIA, 413 F.3d 232,
17 233 (2d Cir. 2005), which we review for abuse of discretion,
18 see Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). We
19 find no abuse of discretion here.
20 It is undisputed that Jiang’s motion filed in 2018 was
21 untimely because she filed it six years after her final order
22 of removal. See 8 U.S.C. § 1229a(c)(7)(C)(i) (90-day
23 deadline for motion to reopen); 8 C.F.R. § 1003.2(c)(2)
2
1 (same). She argues that the BIA should have excused the
2 deadline because her former counsel was ineffective and
3 because conditions in China for Falun Gong practitioners,
4 Christians, and Jehovah’s Witnesses had worsened since the
5 time of her hearing before an immigration judge. While
6 ineffective assistance and changed conditions implicate
7 exceptions to the filing deadlines, the BIA did not err in
8 rejecting these arguments, which we address in turn.
9 An applicant who demonstrates ineffective assistance of
10 counsel may be entitled to equitable tolling of the deadline
11 for a motion to reopen, see Rashid v. Mukasey, 533 F.3d 127,
12 130–31 (2d Cir. 2008), but to establish ineffective
13 assistance, the applicant must show that her “counsel’s
14 performance was so ineffective as to have impinged upon the
15 fundamental fairness of the hearing in violation of the fifth
16 amendment due process clause,” Rabiu v. INS, 41 F.3d 879, 882
17 (2d Cir. 1994). An applicant cannot state an ineffective
18 assistance claim where counsel made reasonable, tactical
19 decisions. See Changxu Jiang v. Mukasey, 522 F.3d 266, 270
20 (2d Cir. 2008).
21 Here, the agency did not err in finding that Jiang’s
3
1 former counsel was not ineffective in failing to request
2 cancellation of removal and voluntary departure because the
3 record reflects that Jiang would not have been eligible for
4 those forms of relief. Cancellation requires an applicant
5 to show that her removal would cause a qualifying relative
6 “exceptional and extremely unusual hardship,” 8 U.S.C.
7 § 1229b(b)(1)(D), but at the time of Jiang’s original
8 proceedings, her only qualifying relative was her U.S.
9 citizen son who had spent most of his life in China. For
10 voluntary departure, she would have had to show that she had
11 the means to depart the United States and present her passport
12 or other travel document, see 8 U.S.C. § 1229c(b); 8 C.F.R.
13 § 240.25(b), but Jiang did not have a passport at the time of
14 the hearing.
15 Nor has Jiang shown that the agency erred in concluding
16 that she failed to meet the changed country conditions
17 exception to the deadline for reopening. There is no
18 deadline for a motion to reopen “based on changed country
19 conditions arising in the country of nationality or the
20 country to which removal has been ordered, if such evidence
21 is material and was not available and would not have been
4
1 discovered or presented at the previous
2 proceedings.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8
3 C.F.R. § 1003.2(c)(3)(ii). But Jiang was found not credible
4 as to her Falun Gong claim, and in any event, a comparison of
5 the country conditions evidence at the time of her 2011
6 hearing and her motion to reopen reveals only incremental
7 change in the treatment of Falun Gong practitioners and
8 Christians. See Kaur, 413 F.3d at 234 (upholding BIA’s
9 denial of motion to reopen where new evidence did not rebut
10 underlying adverse credibility determination); In re S-Y-G-,
11 24 I. & N. Dec. 247, 257 (B.I.A. 2007) (change that is
12 “incremental or incidental” does not constitute changed
13 country conditions to excuse late motions to reopen). Jiang
14 did not provide any evidence in support of her claim that
15 conditions had materially changed for Jehovah’s Witnesses in
16 China.
17 For the foregoing reasons, the petition for review is
18 DENIED. All pending motions and applications are DENIED and
19 stays VACATED.
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe,
22 Clerk of Court
5