Xing Li v. Attorney General United States ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-3814
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XING BIN LI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
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On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No.: A077-027-160)
Immigration Judge: Honorable Alberto J. Riefkohl
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Submitted Pursuant to Third Circuit LAR 34.1(a)
April 30, 2014
Before: RENDELL, GREENAWAY, JR., and ALDISERT, Circuit Judges
(Opinion filed: April 30, 2014)
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OPINION
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PER CURIAM
Xing Bin Li petitions for review of a decision of the Board of Immigration
Appeals (BIA). For the reasons below, we will deny the petition for review.
Li, a native of China, entered the United States in May 1998. He was charged as
removable as an alien present in the United States who had not been admitted or paroled.
Li applied for asylum and withholding of removal, and relief under the Convention
Against Torture (CAT). In April 1999, an Immigration Judge (IJ) found Li removable
and denied his applications for relief. The BIA summarily dismissed his appeal in March
2002 for failure to file a brief. Over eleven years later in July 2013, Li filed a motion to
reopen alleging ineffective assistance of counsel and changed country conditions. The
BIA denied the motion to reopen, and Li filed a petition for review.
We have jurisdiction under 8 U.S.C. § 1252. We review the denial of a motion to
reopen for abuse of discretion. Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006).
Under this standard, we may reverse the BIA’s decision only if it is “arbitrary, irrational,
or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). An alien
generally may file only one motion to reopen, and must file the motion with the BIA “no
later than 90 days after the date on which the final administrative decision was rendered.”
8 C.F.R. § 1003.2(c)(2).
Li argues that he was entitled to reopen his proceedings due to ineffective
assistance of counsel because he was represented by the Porges Law Firm, and the firm’s
lawyers did not file a timely brief before the BIA. He submitted an opinion by the New
York Supreme Court, Appellate Division in which it disbarred Robert Porges. The court
stated that Porges engaged in racketeering by preparing and submitting false applications
for asylum for Chinese aliens between 1993 and September 2000. A.R. at 28-29. The
BIA determined that Li had not complied with the requirements of Matter of Lozada, 19
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I. & N. Dec. 637 (BIA 1988), for establishing an ineffective assistance claim and had not
shown due diligence in raising his claim.
Li argues that he should not have been required to comply with Lozada because it
is common knowledge who Porges is and what crimes he has committed. According to
the electronic docket for the Southern District of New York, Porges was indicted in
September 2000, pleaded guilty in February 2002 to racketeering and tax fraud
conspiracy, and was sentenced to 97 months in prison. Because Porges has been
disbarred, Li contends that he was precluded from filing a complaint against him.
However, before the IJ, Li was represented by several attorneys from the Porges Law
Firm: Estella Viglianco, Victor Ocampo, Charles Chen, Ed Fu, and Gen Chow. At one
brief bond hearing, Li was represented by Robert Porges.
In a motion to file the brief before the BIA out of time, an attorney named Victoria
Calle represented that the Porges Law Firm was retained by Li on the date the appellate
brief was due. (Li had filed a pro se notice of appeal.) She noted that Li had been
informed that the firm might not be able to submit a brief due to its lateness and Li agreed
not to hold counsel accountable. A.R. at 92. Li has not shown that Robert Porges was
involved in the late filing of the brief. (It appears that Li himself is responsible for the
late filing.) Thus, Porges’s conviction does not excuse Li from fulfilling the Lozada
requirements. Moreover, as noted by the BIA, Li did not show due diligence in waiting
over eleven years after the dismissal of his appeal to file his motion to reopen. His
allegations of ineffective assistance of counsel thus do not entitle him to file an untimely
motion to reopen.
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Changed Country Conditions
There is an exception to the time and number requirements for motions to reopen
that rely on material evidence of changed circumstances arising in the country of
nationality. 8 C.F.R. § 1003.2(c)(3). Li argues that circumstances have changed
materially for Christians in China and supporters of Tibet.
With his motion to reopen, Li submitted the 2012 Country Report on Human
Rights Practices for China. A.R. at 55-82. He did not discuss the Report in any detail or
quote from it. A.R. at 11-19. In his brief, he now quotes at length from the 2012 Report
of the Congressional-Executive Commission on China and the 2012 Department of State
International Religious Freedom Report for China. However, neither of these reports is
in the administrative record. We may decide a petition for review based only on the
administrative record. See 8 U.S.C. § 1252(b)(4)(A). Li asserts in a footnote that the
Court can take judicial notice of changed conditions in asylum cases. However, the two
cases he cites involved the fall of Saddam Hussein’s regime in Iraq and a coup in Fiji. Li
does not point to any such dramatic event in China that would affect the treatment of
Christians. Moreover, we have noted that we do not take judicial notice of new country
developments. Kamara v. Att’y Gen., 420 F.3d 202, 218 (3d Cir. 2005). Furthermore, Li
has not shown that these 2012 reports were not available at the time he filed his motion to
reopen in July 2013.
Li contends that the BIA selectively considered the evidence relating to his
political opinion claim. Li argued in his motion to reopen that there are changed
circumstances based on his pro-Tibet activities in the United States. He also contended
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that the head of a village committee in China purportedly issued a notice and ordered Li
to report to the committee’s office due to his involvement in “illegal religious and
political activities.” A.R. at 45. The BIA stated that Li’s documents were unreliable and
insufficient to support reopening. It also stated that Li had offered no evidence to support
his claim that he participated in pro-Tibet activities in the United States. It concluded
that he had not shown a change in the conditions in China with regard to returnees who
are active in pro-Tibet activities in the United States. A.R. at 5. We agree.
Li appears to argue that the BIA failed to consider the letter from his uncle and the
issuance of a notice by a village committee as evidence of changed circumstances in
China for those who support Tibet. He also contends that the BIA erred in discounting
those documents as unauthenticated. The BIA gave Li’s documents little weight due to
their unreliability. The BIA observed that the village committee notice was handwritten
and had not been authenticated in any manner. It noted that the letter from Li’s uncle
regarding his arrest was unsworn, created for the litigation, not subject to cross-
examination, and uncorroborated by any police report, medical records, or any other
documents. The BIA did not err in the weight given to the documentary evidence.
Even accepting the village committee notice as authentic, Li must still show that
his claim is based on changed country conditions in China for supporters of Tibet and not
just a change in his personal circumstances based on his activities in the United States.
Aliens may not manufacture new asylum claims by changing their personal
circumstances. See Liu v. Att’y Gen., 555 F.3d 145, 151 (3d Cir. 2009).
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Li has not shown that the BIA abused its discretion in denying his motion to
reopen. Accordingly, we will deny the petition for review.
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