Shufang Li v. Holder ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 25, 2009
No. 08-61097 Charles R. Fulbruge III
Summary Calendar Clerk
SHUFANG LI, also known as Shu Fang Li,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A98 449 955
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Shufang Li petitions us for review of the Board of Immigration Appeals’s
(“BIA”) denial of her request to reissue its decision. Because the BIA did not
abuse its discretion, we deny the petition.
Li is a Chinese citizen who overstayed her visa. Faced with deportation,
she applied for asylum. The immigration judge denied her application for
asylum, and she appealed to the BIA. On February 7, 2008, the BIA affirmed
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-61097
the decision. Having missed the thirty-day deadline to appeal, Li moved for
reopening to have the BIA reissue its opinion with a new date on September 5.
The BIA denied that motion on November 14, and Li appealed to this court on
December 10.
Li first asks us to reverse the BIA’s February 7 asylum denial. Because
more than thirty days passed between the BIA’s asylum decision and her
December 10 appeal, we lack jurisdiction to consider the issue. See Stone v.
INS, 514 U.S. 386, 406 (1995).
We can, however, consider Li’s appeal of the BIA’s refusal to reopen her
case. The BIA can reissue an opinion with a new date to allow an immigrant the
opportunity to appeal. See Roy v. Ashcroft, 389 F.3d 132, 136 (5th Cir. 2004).
The question here is under what circumstances it must. We can overturn the
BIA’s decision not to reissue a decision only when it abuses its discretion. Zhao
v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). Li argues the BIA should have
reissued the opinion with a new date to allow her to appeal because she never
received the opinion. She points to two possible causes: the BIA and her
attorney.1
Li first contends that the BIA erred by sending its opinion to her lawyer’s
old address in Monterey Park, California, instead of the lawyer’s address in San
Gabriel, California. After the BIA decides a case, it must serve the decision upon
the alien. 8 C.F.R. § 1003.13(f). When an alien has an attorney, the BIA can
send the decision to the alien’s attorney. Id. § 1292.5(a). The BIA serves a
decision upon an alien by “mailing a document to the appropriate party.” Id. §
1
Li’s brief may also be read to question whether the BIA ever sent the decision,
although it is unclear on this point. If that is a third argument, she cannot make it to us for
the first time. See Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001) (“An alien fails to
exhaust his administrative remedies with respect to an issue when the issue is not raised in
the first instance before the BIA—either on direct appeal or in a motion to reopen.”) (citation
omitted).
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No. 08-61097
1003.13. Whether Li’s attorney received the decision is only relevant insofar as
it is circumstantial evidence that the BIA never sent the opinion. See Jahjaga
v. Att’y Gen. of the U.S., 512 F.3d 80, 84-85 (3d Cir. 2008) (considering nonreceipt
only as evidence that the BIA failed to send its decision); Gaberov v. Mukasey,
516 F.3d 590, 594-95 (7th Cir. 2008) (same); Chen v. U.S. Att’y Gen., 502 F.3d 73,
76-77 (2d Cir. 2007) (per curiam) (“Once the BIA has performed its duty of
serving the order, the time for appeal and motions to reopen begins to run, even
if the order miscarries in the mail or the alien does not receive it for some other
reason that is not the BIA’s fault.”); Singh v. Gonzales, 494 F.3d 1170, 1172 (9th
Cir. 2007) (“If the decision was properly mailed, then the BIA fulfilled its
statutory duty of service.”); Radkov v. Ashcroft, 375 F.3d 96, 99 (1st Cir. 2004)
(“Even if, as the petitioners contend, the mailing in this case somehow went
awry without any fault on the part of the BIA, that circumstance alone would
not excuse the failure to file a timeous motion to reopen.”).
In this case, whether Li’s attorney received the decision is irrelevant. She
acknowledges that the BIA sent it and only objects to the address. Although her
attorney received earlier correspondence at the San Gabriel address, the
attorney later listed the Monterey Park address on her appearance of counsel
form for the BIA appeal. The Monterey Park address was the last address
provided to the BIA. By sending the decision to the Monterey Park address, the
BIA fulfilled its obligation.
Li next argues that if it was not the BIA’s fault, it was her attorney’s fault
for listing an old address. That mistake, she argues, constitutes ineffective
assistance of counsel. Because Li did not ask the BIA to use its sua sponte
authority to reopen based on ineffective assistance, we cannot consider the
claim. Wang, 260 F.3d at 452-53.
Finding no error, we hold that the BIA did not abuse its discretion in
refusing to reissue its decision. Li’s petition for review is DENIED.
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