Xing Chen v. Merrick Garland ( 2023 )

USCA4 Appeal: 21-2072 Doc: 37 Filed: 02/22/2023 Pg: 1 of 4
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-2072
XING GUO CHEN,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Submitted: January 5, 2023 Decided: February 22, 2023
Before KING, AGEE, and HEYTENS, Circuit Judges.
Petition denied by unpublished per curiam opinion.
ON BRIEF: Thomas V. Massucci, LAW OFFICE OF THOMAS V. MASSUCCI, New
York, New York, for Petitioner. Brian Boynton, Principal Deputy Assistant Attorney
General, Papu Sandhu, Assistant Director, Song Park, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent
Unpublished opinions are not binding precedent in this circuit.
USCA4 Appeal: 21-2072 Doc: 37 Filed: 02/22/2023 Pg: 2 of 4
PER CURIAM:
Petitioner Xing Guo Chen challenges an order of the Board of Immigration Appeals
denying his motion to reopen his removal proceedings. We conclude the Board did not
abuse its discretion in deeming the motion untimely, and thus deny Chen’s petition.
In September 2012, an immigration judge denied Chen’s request for asylum,
withholding of removal, and protection under the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, finding Chen was “not credible”
and “knowingly made a frivolous application for asylum.” AR 400, 404. Chen appealed
the adverse credibility finding to the Board, which affirmed the immigration judge’s
decision and dismissed the appeal. Chen sought review from this Court, contending—
among other things—that the immigration judge erred in determining he filed a frivolous
asylum application. This Court dismissed Chen’s petition for review in part and denied it
in part, concluding the Court “lack[ed] jurisdiction to consider Chen’s challenge to the
agency’s finding that he knowingly filed a frivolous asylum application because he did not
exhaust this claim before the Board.” Chen v. Lynch, 669 Fed. Appx. 158, 158 (4th Cir.
2016).
In January 2020—more than three years after this Court’s decision (and nearly five
years after the Board’s)—Chen asked the Board to reopen his case “for the sole purpose of
vacating the portion of ” the immigration judge’s decision finding that he knowingly filed
a frivolous asylum application. AR 74. As relevant here, Chen argued his previous
attorneys provided ineffective assistance of counsel by not preventing the frivolousness
2
USCA4 Appeal: 21-2072 Doc: 37 Filed: 02/22/2023 Pg: 3 of 4
finding in the first place and by failing to contest that finding during his initial appeal to
the Board.
The Board ultimately denied Chen’s motion to reopen on two grounds. First,
although the Board determined Chen’s initial counsel rendered ineffective assistance, the
same could not be said of Chen’s second attorney whom Chen retained after the
immigration judge’s initial adverse ruling. The Board concluded Chen’s second attorney’s
“decision not to directly challenge the frivolousness finding was a reasonable tactical
decision based on the record at the time,” which did not prejudice Chen. AR 6.
Second—and “alternatively”—the Board denied Chen’s motion to reopen as
untimely. AR 6. The Board noted Chen filed his motion “well beyond the [usual] 90-day
deadline” for such motions, and it concluded Chen showed no “extraordinary
circumstances beyond [his] control” that warranted equitable tolling. AR 7. Chen claimed
he did not learn of the frivolousness finding and the consequences associated with it until
September 2019. As the Board explained, however, the record showed that: (1) the
immigration judge orally advised Chen of those consequences in June 2012; (2) the
consequences were listed on a form Chen “signed on three separate occasions”; and (3) the
immigration judge “personally served [Chen] with a copy of his written decision containing
the frivolousness finding” at a September 2012 hearing. Id. The Board acknowledged
Chen’s assertion “that he cannot read, write or understand English.” Id. Even so, the Board
noted “there is no requirement that [] an alien in immigration proceedings be provided with
documents in his native language.” Id. (quotation marks omitted). The Board further
emphasized Chen’s failure to “state whether he ever sought legal advice between
3
USCA4 Appeal: 21-2072 Doc: 37 Filed: 02/22/2023 Pg: 4 of 4
September 2016 and September 2019 . . . to address his immigration situation” or tried “to
have the Immigration Judge’s, the Board’s, or the Fourth Circuit’s decisions translated or
read to him in his native language.” AR 8.
Even if the Board erred in resolving Chen’s ineffective assistance arguments, we
see no basis for reversing the Board’s alternative untimeliness holding. The standard for
equitable tolling is “rigorous,” and we review the Board’s application only for an abuse of
discretion. Kuusk v. Holder, 732 F.3d 302, 305 (4th Cir. 2013). Chen does not assert that
“wrongful conduct by the opposing party prevented [him] from timely asserting [his]
claim,” so the only possible basis for equitable tolling is that “extraordinary circumstances
beyond [his] control made it impossible for [him] to comply with the statutory time limit.”
Id. at 304. Having scrutinized the record, we perceive no abuse of discretion in the Board’s
conclusion that Chen failed to clear the high bar for equitable tolling. The petition for
review is therefore
DENIED.
4