Weihua Qu v. Jefferson B. Sessions III ( 2018 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 24, 2018 *
Decided May 4, 2018
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 16-3720
WEIHUA QU, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A205-949-618
JEFFERSON B. SESSIONS, III,
Attorney General of the United States,
Respondent.
ORDER
Weihua Qu, a 39-year-old Chinese national, applied for asylum in 2013 after
overstaying a visitor visa. The immigration judge assigned her a hearing date in 2016.
Qu’s hearing, however, was moved up to October 2014, and the immigration court
mailed a new hearing notice to her attorney at the correct business address. But neither
*The case was set for oral argument on January 24, but the argument was vacated
that day. The case was submitted for decision on the briefs and administrative record to
the panel hearing oral argument on January 24, 2018. See FED. R. APP. P. 34(a)(2)(C).
No. 16-3720 Page 2
Qu nor her attorney appeared at the hearing, and the IJ ordered Qu removed
in absentia. When Qu learned of this, she filed a motion to reopen the proceedings,
asserting that her attorney never advised her about the rescheduled hearing. The IJ
denied that motion, and then a short time later, Qu’s motion to reconsider, which
argued that the lawyer never received notice. The Board of Immigration Appeals
affirmed. We deny Qu’s petition for review.
I. Background
Qu entered the United States as a nonimmigrant visitor with permission to
remain until April 27, 2013. The Department of Homeland Security sent Qu a Notice to
Appear in June 2013, charging her as removable because she stayed longer than
permitted, see 8 U.S.C. § 1227(a)(1)(B). At the first hearing, held in July 2013, DHS
initiated removal proceedings; Qu conceded removability. But Qu, represented by
Roxolana Harasymiw, applied for asylum because she claimed that she had been
persecuted by the Chinese government for violating its one-child policy and that the
government’s persecution would continue if she returned. The IJ scheduled an asylum
hearing for Qu on August 25, 2016, and Harasymiw signed the hearing notice in court
on Qu’s behalf.
The immigration court mailed an amended hearing notice to Harasymiw at her
work address—150 S. Wacker Dr., Suite 650, Chicago, IL, 60606 (which Qu concedes
was the correct address). The notice gave a new hearing date—October 22, 2014—that
was 17 months earlier than the originally scheduled hearing date. There is no evidence
in the record that this notice was returned undelivered. Qu and Harasymiw failed to
appear at this rescheduled hearing, and the IJ ordered Qu removed in absentia. This
decision was also mailed to Harasymiw at the Wacker Drive address.
Some months later Qu filed an application for employment authorization, but it
was denied in May 2015 because the immigration court had denied her applications for
asylum and withholding of removal. A month later on June 30, 2015, Qu, through new
counsel, Xiaoyu Li, moved to reopen Qu’s immigration proceedings. The short motion
Li filed on Qu’s behalf said that Qu had learned in May 2015 that she was ordered
removed, that she had been told her asylum hearing would be held in 2016, and that, as
stated in Qu’s May 27, 2015 affidavit, “[s]he was not notified of the new court date . . .
by her previous attorney . . . or her interpreter.” There were no affidavits from either
Harasymiw or Qu’s interpreter supporting the motion, but it was accompanied by a
No. 16-3720 Page 3
notice of consent to substitute attorneys, which was signed by Qu, Li, and Harasymiw
and, Qu asserts, dated “5/26/15.”
The IJ denied Qu’s motion on July 21, 2015, because she thought it rested on an
ineffective-assistance-of-counsel claim, and Qu’s new attorney, Li, had not followed the
procedure for asserting that argument, see Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A.
1988). About three weeks later Qu filed a motion to reconsider in which she argued that
lack of notice, not ineffective assistance of counsel, had been the basis of her motion to
reopen. This motion was supported by a letter from Harasymiw to attorney Li and
Harasymiw’s affidavit, dated July 10 and July 15, respectively. In her affidavit
Harasymiw swore that she had represented Sun Chengzhi (Qu’s husband and a
derivative beneficiary on her asylum application) and continued: “It appears that
Respondent was re-scheduled for an appearance in court sometime in fall of 2014.
However, counsel did not receive notice of the re-scheduled hearing, for which reason
neither Respondent nor the affiant appeared.” Harasymiw’s two-sentence letter to Li
stated that she was enclosing a copy of Qu’s application for asylum; Harasymiw also
apologized for her delay in responding, saying that she “had some medical issues in
connection with [her] brain surgery.”
The IJ denied the motion for reconsideration too, saying that Qu had based it on
new facts and arguments that should have been raised in her initial motion to reopen.
The IJ reasoned that Qu’s failure to include an affidavit from Harasymiw in support of
the initial motion had been fatal. Since Qu herself was not entitled to receive notice by
mail while represented by counsel, only the attorney’s nonreceipt would be grounds to
reopen. But the motion “failed to address the purported lack of notice to
Ms. Harasymiw”; instead it seemed that Qu believed her lawyer had received notice
and failed to inform her. Or, the IJ continued, at least Qu could have explained why she
had not yet obtained an affidavit of nonreceipt from her lawyer and asked to keep the
record open until she heard back from Harasymiw.
Qu appealed the IJ’s decision to the Board, which affirmed. The Board
determined that Qu had not offered enough evidence in either motion to overcome the
presumption that the notice of rescheduling, sent by regular mail, had been delivered to
Harasymiw. It also pointed out that in Qu’s motion to reopen, she had included a
“Consent to Substitution of Attorneys” that was dated March 26, 2015, not, as Qu says,
“5/26/15,” and was signed by Harasymiw, “which undermines the respondent’s
argument that Ms. Harasymiw was unable to provide an affidavit due to health reasons
until after the motion to reopen was filed on June 30, 2015.”
No. 16-3720 Page 4
II. Analysis
The parties agree that because the Board agreed with the IJ and supplemented
her rulings with its own analysis, the panel should review “both the underlying
decision and the Board’s additional reasoning.” Cojocari v. Sessions, 863 F.3d 616, 621
(7th Cir. 2017). Qu concedes that mailing a notice of removal to a petitioner’s attorney
constitutes notice, Marinov v. Holder, 687 F.3d 365, 368 (7th Cir. 2012) (citing 8 U.S.C.
§ 1229(a)(2)(A); 8 C.F.R. § 292.5(a)), and that there is a rebuttable presumption that a
notice sent via regular mail is delivered, Dakaj v. Holder, 580 F.3d 479, 482 (7th Cir. 2009)
(citing Matter of M.R.A., 24 I. & N. Dec. 665, 673–74 (B.I.A. 2008)).
As a threshold matter, the government asserts that this court’s jurisdiction is
limited to the Board’s order because Qu failed to exhaust her administrative remedies
as related to her motion to reopen. See 8 U.S.C. § 1252(d)(1). Specifically, Qu appealed to
the Board only the IJ’s denial of her motion to reconsider, not the denial of her motion
to reopen. But in the immigration context, we have said “the general exhaustion
requirement is not a jurisdictional rule,” and it does not apply to “issues that are not
raised by the parties but instead addressed by the administrative agency itself.”
Arobelidze v. Holder, 653 F.3d 513, 517 (7th Cir. 2011) (internal quotation marks omitted).
Here, the Board’s order addresses both motions, so the issue was exhausted. 1
On appeal Qu, now represented by a third attorney, urges reversal on the
ground that she never received her second hearing notice. First, focusing on her motion
to reopen, Qu argues that the Board and the IJ erroneously concluded that the
immigration court provided sufficient notice of the rescheduled hearing even though
Qu’s affidavit proved she did not receive notice. For this proposition, Qu relies on
Smykiene v. Holder, 707 F.3d 785 (7th Cir. 2013), in which this court reaffirmed that “an
affidavit of nonreceipt is evidence of nonreceipt.” Id. at 787 (citing Joshi v. Ashcroft,
1 The government also asserts that Qu’s motion to reopen was untimely because
it was filed more than 90 days after the final administrative order. See 8 U.S.C.
§ 1229a(c)(7)(C)(i). But here, Qu is contesting the IJ’s in absentia removal order. An alien
may be ordered removed in absentia after the alien has received notice of her removal
hearing and waived her right to that hearing. Smykiene v. Holder, 707 F.3d 785, 786–87
(7th Cir. 2013). But “if [she] never received the notice, there is no waiver and so [she] is
entitled to reopen the removal proceeding to enable [her] to contest removal . . . . ‘at any
time.’” Id. at 786–87 (quoting 8 U.S.C. § 1229a(b)(5)(C)(ii)).
No. 16-3720 Page 5
389 F.3d 732, 736 (7th Cir. 2004)). She apparently interprets Smykiene to say that an
affidavit alone suffices to rebut the presumption that sent mail is delivered.
There are two problems with this argument. First, Qu reads Smykiene too
broadly. The case does not say that any evidence of nonreceipt is enough to warrant
reopening. It says that once nonreceipt is shown (barring evidence of purposeful
evasion by the petitioner), then the IJ should reopen proceedings. 707 F.3d at 787–88.
Notably in Smykiene, in addition to the petitioner’s attestation, there was evidence from
the U.S. Postal Service that the petitioner’s notice had been returned to the immigration
court as “Attempted—Not Known.” Id. at 786. Here there is no evidence that the
hearing notice was returned undelivered. Also, Joshi, the case on which Smykiene relies,
says a petitioner’s affidavit asserting nonreceipt is “weak evidence” that alone may not
overcome the presumption that sent mail is delivered. Joshi, 389 F.3d at 736–37.
Second, Qu’s initial motion did not rely on the immigration court’s failure to notify
her directly—nor should it have, because the court would send notice only to counsel of
record. Instead, Qu swore that her attorney and interpreter never notified her of “other
court dates.” Her affidavit places the blame on her agents for not telling her about the
rescheduled hearing. Therefore, her affidavit is not even “weak evidence” that the
immigration court failed to provide notice. Blaming the agents also explains why the IJ
believed the motion to reopen was premised on counsel’s ineffectiveness.
Qu next argues that the IJ abused her discretion in denying Qu’s motion to
reconsider in part because she faulted Qu for not submitting Harasymiw’s affidavit in
support of the motion to reopen rather than the later motion. This was error, Qu asserts,
because neither the affidavit nor the information it contained was available to Qu when
she filed her first motion. Without knowing why Harasymiw was not available, Qu
contends, she could not provide the IJ with information beyond what she said in the
motion to reopen.
But Qu could have attested to her failed attempts to contact Harasymiw and told
the IJ that she was continuing to ask Harasymiw what happened. The IJ did not abuse
her discretion in finding that Qu at least should have explained what efforts were
underway to investigate and asked the court to hold the record open. See Sarmiento
v. Holder, 680 F.3d 799, 803 (7th Cir. 2012) (citing 8 U.S.C. § 1229a(c)(6–7)). Qu’s use of
new evidence to support her motion to reconsider was inappropriate because the
motion’s purpose was to “specify the errors of law or fact in the previous order,” not to
submit new facts or arguments supporting reopening a case. 8 U.S.C. § 1229a(c)(6)(C).
No. 16-3720 Page 6
Moreover, the second motion asserted a different theory of relief—failure to notify
Harasymiw—which the statute does not allow, see id. § 1229a(c)(6); Sarmiento, 680 F.3d
at 803. Qu’s argument to the contrary is not consistent with the record.
Moreover, Harasymiw’s belated affidavit is itself problematic. First, it does not
provide sufficient evidence, standing alone or “evaluated in light of all of the relevant
circumstances present in the case” to overcome the presumption that mail is delivered.
See Dakaj, 580 F.3d at 482–83; Derezinski v. Mukasey, 516 F.3d 619, 622 (7th Cir. 2008).
Second, it does not mention Qu; it says only that Harasymiw represented “Respondent”
Sun Chengzhi, Qu’s husband. But as the government points out, that is different from
saying that Qu lacked notice. Qu does not address this. Third, the only possible
explanation about why the affidavit was late came in Harasymiw’s unsworn letter to Li.
But the Board correctly concluded that Harasymiw’s purported health problems were
not in evidence because neither her letter nor Li’s assertions to the Board about
Harasymiw’s medical concerns were sworn. See Matter of Ramirez-Sanchez, 17 I. & N.
Dec. 503, 506 (B.I.A 1980).
Last, Qu argues that, in inferring that she could have obtained Harasymiw’s
affidavit earlier than July 15, the Board erroneously found that she had obtained
consent to substitute attorneys from Harasymiw on March 26, 2015. Qu contends that
the Board simply misread the handwriting on the consent form. Qu insists that the date
on the consent form is “5/26/15” not “3/26/15.” This means her then-attorney, Li, did not
obtain Qu’s records until after May 2015 and Harasymiw was not in a position to
provide an affidavit about nonreceipt of notice before late May. Therefore, Qu argues,
Harasymiw’s July 2015 affidavit was newly discovered after the motion to reopen, and
the IJ should have allowed Qu to supplement her original motion to reopen.
But this is irrelevant and, if true, a harmless error by the Board. Even if Qu and Li
had no contact with Harasymiw before July 17, the IJ reasonably concluded that they
could have, and should have, explained their unsuccessful efforts to contact Harasymiw
at the time the first motion was filed. If anything, Qu’s claim that she was unable to
contact Harasymiw until late May supports the IJ’s original conclusion that Qu was
moving to reopen on the ground of ineffective assistance of counsel because
Harasymiw was unresponsive.
Before concluding, we note that we are disheartened by the advocacy Qu has
received throughout this case. The affidavits and arguments submitted by all her
advocates leave us questioning where Qu’s case went so wrong. Given Harasymiw’s
No. 16-3720 Page 7
unexplained absence and failure to communicate, we understand why an adjudicator
would understand Qu’s claim to be ineffective assistance of counsel. And Li served her
no better, given the paltry support for the motion to reopen. But, even so, Qu has never
properly asserted that counsel’s ineffectiveness caused her predicament, and has
presented no meritorious argument on appeal that her motions to reopen and for
reconsideration should have been granted.
Because neither the Board nor the IJ abused their discretion, and none of Qu’s
arguments have merit, we DENY Qu’s petition for review.