Reng Sheng Chen v. Holder ( 2014 )

13-670
Chen v. Holder
BIA
A078 928 151
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 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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 9th day of May, two thousand fourteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DEBRA ANN LIVINGSTON,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 RENG SHENG CHEN, AKA REN SHENG CHEN,
14 Petitioner,
15
16 v. 13-670
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Fuhao Yang, Law Office of Fuhao
24 Yang, New York, NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Edward J. Duffy, Senior
28 Litigation Counsel; Nicole R.
29 Prairie, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Reng Sheng Chen, a native and citizen of
6 China, seeks review of a January 29, 2013 decision of the
7 BIA denying his untimely and number-barred motion to reopen.
8 In re Reng Sheng Chen, No. A078 928 151 (B.I.A. Jan. 29,
9 2013). We assume the parties’ familiarity with the
10 underlying facts and procedural history in this case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006) (per curiam). An alien seeking to reopen
14 proceedings is required to file a motion to reopen no later
15 than 90 days after the date on which the final
16 administrative decision was rendered and may file only one
17 such motion. See 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R.
18 § 1003.2(c)(2). There is no dispute that Chen’s 2012 motion
19 was untimely and number barred because he filed two prior
20 motions to reopen and his order of removal became final in
21 2007. See 8 U.S.C. § 1101(a)(47)(B). Chen contends,
22 however, that his recent conversion to Christianity in the
23 United States and worsened treatment of Christians in China
2
1 constitute materially changed conditions excusing his motion
2 from the applicable time and number limitations. He also
3 argues that the attorney who filed his second motion to
4 reopen rendered ineffective assistance of counsel.
5 The BIA did not abuse its discretion in denying
6 reopening due to Chen’s failure to support his motion with
7 an application for relief. The applicable regulation makes
8 clear that an appropriate application for relief is
9 mandatory, not permissive. See 8 C.F.R. § 1003.2(c)(1) (“A
10 motion to reopen proceedings for the purpose of submitting
11 an application for relief must be accompanied by the
12 appropriate application for relief and all supporting
13 documentation.”); Lin Xing Jiang v. Holder, 639 F.3d 751,
14 757 (7th Cir. 2011).
15 Chen’s contention that the BIA erred by requiring
16 evidence of changed conditions in his home province of
17 Fujian is misplaced because he bore the burden of supporting
18 his motion with “material” evidence. See 8 C.F.R.
19 § 1003.2(c)(1); 8 U.S.C. § 1229a(c)(7)(B). Cf. Jian Hui
20 Shao v. Mukasey, 546 F.3d 138, 148-49, 160-62 (2d Cir. 2008)
21 (stating that where enforcement of a policy varies, it is
22 the applicant’s burden to show a well-founded fear of
3
1 persecution in his locality in China). Chen does not
2 challenge the BIA’s finding that he failed to demonstrate
3 materially changed conditions in Fujian Province. He has
4 therefore waived review of this dispositive determination.
5 Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n.1 (2d Cir.
6 2005).
7 Lastly, the BIA did not err by declining to address
8 Chen’s ineffective assistance claim. Ineffective assistance
9 of counsel may toll the 90-day time limitation on motions to
10 reopen if the movant has exercised “due diligence” in
11 pursuing his claim throughout the entire period sought to be
12 tolled. See Rashid v. Mukasey, 533 F.3d 127, 130-31 (2d
13 Cir. 2008). However, Chen’s ineffective assistance claim,
14 even if credited, could not furnish a basis for tolling the
15 90-day time limitation because his attorney’s allegedly
16 deficient representation did not commence until 2009—well
17 after the 90-day period had expired. Chen’s assertion that
18 the BIA erred by declining to reopen his proceedings sua
19 sponte is also misplaced because his motion did not request
20 sua sponte reopening, which, in any event, we generally lack
21 jurisdiction to review. See Lin Zhong v. U.S. Dep’t of
22 Justice, 480 F.3d 104, 107 n.1 (2d Cir. 2007) (recognizing
4
1 that issue exhaustion is a mandatory, although not
2 jurisdictional, requirement); see also Ali, 448 F.3d at 518
3 (holding that this Court lacks jurisdiction to review the
4 BIA’s “entirely discretionary” decision to decline to reopen
5 proceedings sua sponte).
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any stay of
8 removal that the Court previously granted in this petition
9 is VACATED, and any pending motion for a stay of removal in
10 this petition is DISMISSED as moot. Any pending request for
11 oral argument in this petition is DENIED in accordance with
12 Federal Rule of Appellate Procedure 34(a)(2), and Second
13 Circuit Local Rule 34.1(b).
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
17
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