Feng Ju Zhang v. Attorney General United States , 514 F. App'x 142 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-2860
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FENG JU ZHANG,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
__________________________________
On a Petition For Review of an Order
of the Board of Immigration Appeals
(Agency No. A074-853-532)
Immigration Judge: Henry S. Dogin
__________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 13, 2013
Before: SCIRICA, VANASKIE and COWEN, Circuit Judges
(Opinion filed: March 7, 2013)
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OPINION
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PER CURIAM
Feng Ju Zhang (“Zhang”) petitions for review of the Board of Immigration
Appeals‟ final order of removal. For the reasons that follow, we will deny the petition for
review.
Zhang, a native and citizen of China, entered the United States in September,
1997. He is removable under Immigration & Nationality Act (“INA”) § 212(a)(6)(A)(i),
8 U.S.C. § 1182(a)(6)(A)(i), as an alien present without being admitted or paroled. He
applied for asylum, statutory withholding of removal, and protection under the
Convention Against Torture, and a hearing was scheduled. When he failed to appear, an
order of removal was entered in absentia on January 15, 1999.
On November 15, 2004, Zhang, through new counsel, Jim Li, Esquire, filed a
motion to reopen removal proceedings in Immigration Court to apply for asylum. Zhang
claimed that he did not receive notice of his hearing due to the ineffective assistance of
his former counsel. In a supporting affidavit, Zhang noted that he learned through a
friend of the existence of the order of removal “sometime in 1999.” A.R. 108. The
Immigration Judge denied the motion to reopen. The IJ concluded that the motion was
untimely by several years. Motions to reopen in absentia orders due to exceptional
circumstances, and ineffective assistance of counsel may constitute an exceptional
circumstance, may be filed within 180 days of the order under INA § 240(b)(5)(C)(i), 8
U.S.C. § 1229a(b)(5)(C)(i), but Zhang‟s motion was filed well past that deadline. In the
alternative, the IJ concluded that Zhang failed to provide prima facie evidence that he
was entitled to the relief sought, citing Guo v. Ashcroft, 386 F.3d 556, 563-64 (3d Cir.
2004). Zhang‟s motion to reopen did not include an application for relief, or any
affidavits or other evidentiary material. Last, the IJ concluded that Zhang failed to
provide prima facie evidence of changed country conditions sufficient to excuse the 90-
day time limit for filing motions to reopen under 8 C.F.R. § 1003.23(b)(1).
On August 18, 2005, the Board of Immigration Appeals affirmed without opinion
pursuant to 8 C.F.R. § 1003.1(e)(4). Zhang petitioned for review in this Court. Pursuant
to a joint motion, the matter was remanded to the Board in order for it to consider
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whether Zhang was entitled to equitable tolling of the 180-day deadline of 8 U.S.C. §
1229a(b)(5)(C)(i).
On September 25, 2007, the Board considered the equitable tolling question under
Mahmoud v. Gonzales, 427 F.3d 248, 252-53 (3d Cir. 2005), and Borges v. Gonzales,
402 F.3d 398, 407 (3d Cir. 2005), and determined that the 180-day deadline should not be
tolled. The Board noted that Zhang argued that his original attorney, Jules E. Coven,
Esquire, failed to inform him of the January 15, 1999 hearing date, that he also was not
personally informed of his hearing date in court through an interpreter, and that, when he
found out about the removal order sometime in 1999, Coven had moved offices. Then, in
April, 2001, he was seriously injured. He subsequently underwent numerous surgeries to
repair his hand, which affected his memory and spiritual well-being.
In considering these equitable arguments and accepting Zhang‟s version of the
facts as true, the Board found that Zhang was personally served with the Notice To
Appear on September 30, 1997. The hearing notice dated July 14, 1998 indicated that
Zhang was provided written and oral notice of the January 15, 1999 hearing date. By his
own admission, Zhang learned of the order of removal no later than December 31, 1999.
The Board then reviewed the holdings in Borges and Mahmoud, and noted in particular
Mahmoud‟s holding that an alien must show that he acted with due diligence by taking
steps to pursue his immigration case. The Board then determined that Zhang did not
establish due diligence. Zhang admitted that he learned of the removal order sometime in
1999, and yet he did not file his motion to reopen until November, 2004. The Board
credited Zhang‟s claims concerning his medically-related memory loss beginning in
April, 2001, but concluded that these assertions failed to account for the period from late
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1999 to April, 2001, a period of at least 15 months. On June 5, 2012, the Board, pursuant
to 8 C.F.R. § 1003.2(a), reissued its September 25, 2007 decision because Zhang had not
received notice of it.
Zhang has timely petitioned for review. We have jurisdiction under 8 U.S.C. §
1252(a)(1), (b)(1). In his brief on appeal, Zhang argues that the Board abused its
discretion in rejecting his equitable tolling argument based on ineffective assistance of
counsel. To excuse his delay in filing his motion to reopen, he argues that original
counsel failed to advise him of the removal order and was thus ineffective in violation of
his right to due process. In determining the case, Zhang argues, the Board “failed to
consider the overall facts of this case, and instead focused on the gap it discovered.” See
Petitioner‟s Brief, at 9. “Any fixed time limit is irrational because [he] would have
needed to seek new counsel to reopen his case, which was marred by his inability to
communicate in English, the fact that Mr. Coven‟s firm did not retain a copy of his file,
and his injury.” Id. Zhang further argues that his attorney on remand to the Board,
Jeffrey Bloom, Esquire, failed to file a brief and was thus ineffective. See id. at 3-4, 9.
We will deny the petition for review. We review the denial of a motion to reopen
for an abuse of discretion. Immigration & Naturalization Serv. v. Doherty, 502 U.S. 314,
323 (1992). Under the deferential abuse of discretion standard, we will not overturn the
Board‟s decision unless it is arbitrary, irrational, or contrary to the law. See Guo v.
Ashcroft, 386 F. 3d 556, 562 (3d Cir. 2004). We uphold the Board‟s factual
determinations underlying the denial of the motion to reopen if they are “„supported by
reasonable, substantial, and probative evidence on the record considered as a whole.‟”
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Zheng v. Att‟y Gen. of U.S., 549 F.3d 260, 266 (3d Cir. 2008) (quoting Immigration &
Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481 (1992)).
The Board did not abuse its discretion in determining that Zhang‟s motion to
reopen was untimely filed and that equitable tolling was not warranted. An alien in
removal proceedings shall be ordered removed in absentia if he fails to appear at a
scheduled hearing after having been properly provided written notice of the time and
place of that hearing, and the agency establishes by clear, unequivocal, and convincing
evidence that the notice was provided and that the alien is removable as charged. 8
U.S.C. § 1229a(b)(5)(A). See also 8 C.F.R. § 1003.26(c). An order of removal entered
in absentia may be rescinded only:
(i) upon a motion to reopen filed within 180 days after the date of the order
of removal if the alien demonstrates that the failure to appear was because
of exceptional circumstances (as defined in subsection (e)(1) of this
section), or (ii) upon a motion to reopen filed at any time if the alien
demonstrates that the alien did not receive notice in accordance with
paragraph (1) or (2) of section 1229(a) of this title or the alien demonstrates
that the alien was in Federal or State custody and the failure to appear was
through no fault of the alien.
8 U.S.C. § 1229a(b)(5)(C).
With respect to subparagraph (b)(5)(C)(i), Zhang‟s motion to reopen plainly was
not timely filed within 180 days of the in absentia order. The administrative record
shows that an order of removal in absentia issued on January 15, 1999 when Zhang failed
to appear. Zhang had 180 days from this date in which to file his motion, and his filing in
November, 2004 was well beyond the deadline. Under Borges and Mahmoud, attorney
conduct can provide a basis for equitable tolling of the 180-day deadline, but failure to
exercise due diligence in asserting ineffective assistance of counsel undermines any claim
for equitable tolling. “Equitable tolling is an extraordinary remedy which should be
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extended only sparingly.” Mahmoud, 427 F.3d at 253 (quoting Hedges v. United States,
404 F.3d 744, 751 (3d Cir. 2005)).
Zhang has argued that it was arbitrary for the Board to focus its due diligence
analysis on the gap from December 31, 1999 to April, 2001. But the November, 2004
motion to reopen, and the affidavit Zhang submitted in support of it, substantially support
the Board‟s conclusion that Zhang had no explanation for his failure to pursue his case
from the time he discovered the removal order in 1999 until his injury in April, 2001.
Accordingly, even though his medical injuries were significant, and even assuming that
he may have accounted for the time between April, 2001 and the actual filing of the
motion to reopen, he failed to explain why he did nothing between late 1999 and April,
2001, a period of 15 months. The Board did not act arbitrarily in considering the
inactivity from December 31, 1999 to April, 2001 as it reflected on whether Zhang had
exercised diligence. “Due diligence must be exercised over the entire period for which
tolling is desired.” Alzaarir v. Att‟y Gen. of U.S., 639 F.3d 86, 90 (3d Cir. 2011) (citing
Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008)). “This includes both the period of
time before the ineffective assistance of counsel was or should have been discovered and
the period from that point until the motion to reopen is filed.” Id. Indeed, the period of
inactivity could have been many months longer had the Board not given Zhang the
benefit of the doubt in accounting for the months between January 15, 1999 and
December 31, 1999. Zhang argues that his attorney moved offices, but he did not state
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what he did during those 15 months to find another attorney, or even assert that he took
any action to find another attorney during this time period.1
Zhang‟s remaining argument appears to be that his counsel on remand to the
Board, Jeffrey Bloom, neglected to file a new brief after being given the opportunity to
do so, and he appears to suggest that the Board dismissed his appeal without reaching the
merits of the equitable tolling issue because no new brief was filed. See Petitioner‟s
Brief, at 4. The record, however, reflects that, although no new brief was filed (the
Department of Homeland Security also did not file a new brief), the Board considered
Zhang‟s appellate brief filed on February 23, 2005, and then dismissed the appeal based
on a merits determination of the equitable tolling issue. Zhang has failed to show that
there is a reasonable likelihood that the result on remand would have been different had
an additional brief been filed on his behalf. See Fadiga v. Att‟y Gen. of U.S., 488 F.3d
142, 159 (3d Cir. 2007).
Because the Board did not abuse its discretion in determining that Zhang‟s motion
to reopen was untimely filed and that equitable tolling was unwarranted, see Mahmoud,
427 F.3d at 253, we need not consider his argument that he is prima facie eligible for
asylum, statutory withholding of removal and protection under the Convention Against
Torture, see Petitioner‟s Brief, at 12-14.
For the foregoing reasons, we will deny the petition for review.
1
With respect to subparagraph (b)(5)(C)(ii), there is no deadline for filing the motion to
reopen if the alien did not receive the notice, but, under 8 U.S.C. § 1229a(b)(5)(a), notice
may be “provided to the alien or the alien‟s counsel of record.” Zhang does not contend
that notice of the hearing was not provided to counsel of record, and, in any event, the
record establishes that the July 14, 1998 notice of the January 15, 1999 hearing was
personally served on the law firm of Lebenkoff & Coven on Fifth Avenue in New York
City, A.R. 160-61.
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