Shaohua He v. Eric H. Holder, Jr. , 781 F.3d 880 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3104
SHAOHUA HE,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the
United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A089 697 156
____________________
ARGUED JANUARY 27, 2015 — DECIDED MARCH 27, 2015
____________________
Before POSNER, SYKES, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Shaohua He, a citizen of China,
petitions for review from the denial of his motion to recon-
sider the denial of his application for asylum and withhold-
ing of removal based on his fear of future persecution be-
cause he is a practicing Christian. His petition, however, fo-
cuses on only the underlying denial of his application for
asylum and withholding—a ruling that is not properly be-
2 No. 14-3104
fore us. Because He has not even tried to show that the deni-
al of his motion to reconsider was erroneous, we deny his
petition for review.
He testified that he entered the United States in 2007 in
circuitous fashion through Indonesia and Canada before ar-
riving in New York. He came to Chicago a year later, he said,
to retain an attorney to apply for asylum based on mistreat-
ment (arrest and beatings, though the details are unclear)
that he had suffered in Fujian Province on account of his
Christian beliefs. A month after he filed his application, the
Department of Homeland Security charged him with re-
movability as an alien present in the United States without
being admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i).
At his removal hearing, He testified about the mistreat-
ment he experienced because of his membership in a Chris-
tian house-church movement known as the Shouters, which
the Chinese government has branded an “evil cult.” 1 In June
1 The Shouters are an evangelical Christian sect who worship in
small groups, do not have official clergy, and use a “non-standard edi-
tion of the Bible.” See Australian Refugee Tribunal, RRT Research Re-
sponse: China 1 (October 2005), available at
http://www.refworld.org/pdfid/4b6fe13c0.pdf; Human Rights Watch,
China: Persecution of a Protestant Sect 2 (June 1994), available at
http://www.hrw.org/reports/pdfs/c/china/china946.pdf. By 1983, the sect
had some 200,000 followers across China. See Jae Ho Chung, et al.,
Mounting Challenges To Governance In China: Surveying Collective Protes-
tors, Religious Sects and Criminal Organizations, THE CHINA JOURNAL, 1, 12
(2006). By 1996, the sect had expanded in Fujian, He’s native province, to
420 sites and 50,000 followers. See id. at 12. The Shouter sect is now la-
beled an illegal “evil cult” by the Chinese government. See U.S. Depart-
ment of State, Bureau of Democracy, Human Rights and Labor, Interna-
tional Religious Freedom Report for 2013: China 4 (2013).
No. 14-3104 3
2006 he was arrested while trying to recruit new members
with fellow Shouters. He was held at a detention center for
two weeks, during which he says he was beaten four times.
He says he was bailed out with the help of a fellow church-
goer and later sought medical attention for injuries to his
face. After his release he was required to report to the police
every two weeks. Aided by “snakeheads,” he departed Chi-
na in 2006, leaving behind a wife and three children. About a
year after arriving, he applied for asylum, withholding of
removal, and relief under the Convention Against Torture.
The immigration judge denied He all relief. The judge
found that He’s testimony was not credible and that he failed
(in this case under the REAL ID Act) to provide corroborat-
ing evidence to support his claim. The judge found He’s tes-
timony incredible because it was “extremely vague,” “inter-
nally inconsistent” with respect to several details (including
the date when he became a Shouter and the number of police
officers who entered the house church to arrest him), and
incomplete regarding basic aspects of his claim. The judge
found He statutorily ineligible for asylum because he did not
file his application within one year of his arrival in the Unit-
ed States. (The judge refused to credit He’s account of when
he arrived because of his “materially inconsistent statements
regarding his time, place, and manner of entry.”) The judge
also found He ineligible for withholding or CAT protection
because he failed to show it is more likely than not that his
life would be threatened or that he would be tortured in
China. The Board of Immigration Appeals upheld the immi-
gration judge’s ruling.
He then hired his current attorney, Scott Yu, who filed a
motion to reconsider with the Board, arguing that the Board
4 No. 14-3104
had erred in upholding the judge’s findings regarding He’s
lack of credibility and corroboration. The Board denied the
motion on August 26, 2014. He then filed this petition for re-
view, but he had not filed a timely petition for review of the
underlying denial of relief.
In his brief in support of this petition for review of the
denial of his motion to reconsider, He targets the underlying
denial of his application, arguing that he should be granted
asylum, withholding of removal, and protection under the
CAT because he met his burden to qualify for each form of
relief. He also contests the agency’s rulings that he was not
credible and did not provide sufficient corroborating evi-
dence. The petition and brief do not contest the Board’s de-
nial of his motion to reconsider.
He’s target is wrong because we have jurisdiction to re-
view only the denial of his motion to reconsider. See 8 U.S.C.
§ 1252(b)(1). “[T]he case law could not be clearer on this is-
sue; a motion to reconsider does not toll the initial 30-day
filing deadline for seeking judicial review of the underlying
removal order. The finality of a removal order ‘is not affected
by the subsequent filing of a motion to reconsider.’” Asere v.
Gonzales, 439 F.3d 378, 380 (7th Cir. 2006), quoting Stone v.
INS, 514 U.S. 386, 405 (1995). He’s September 24, 2014 peti-
tion for review was untimely with regard to the Board’s un-
derlying order denying relief dated May 27, 2014, thus de-
priving us of jurisdiction to review that order. Because He
did not challenge the denial of his motion to reconsider, he
has waived any arguments he might have made to challenge
the only decision over which we have jurisdiction. See Tian v.
Holder, 745 F.3d 822, 827 (7th Cir. 2014); Asere, 439 F.3d at
380–81.
No. 14-3104 5
This case highlights the consequences of misusing a mo-
tion to reconsider before the Board. Such motions “are not
replays of the main event,” Khan v. Holder, 766 F.3d 689, 696
(7th Cir. 2014) (internal quotation marks and citation omit-
ted), and should not be used to argue what was or could
have been raised on an initial appeal. See Raghunathan v.
Holder, 604 F.3d 371, 378 (7th Cir. 2010); Ahmed v. Ashcroft,
388 F.3d 247, 249, 251 (7th Cir. 2004); Liu v. Gonzales, 439 F.3d
109, 111 (2d Cir. 2006); Strato v. Ashcroft, 388 F.3d 651, 655
(8th Cir. 2004). The Board will deny a motion to reconsider
that has not “identified specific factual or legal errors in [its]
prior ruling.” See 8 C.F.R. § 1003.2(b)(1); In re O–S–G, 24
I & N Dec. 56, 58 (BIA 2006). Rather than revisit matters that
were already covered (or should have been covered) in a
prior appeal to the Board, the better course for a petitioner is
to file a petition for review in this court:
[I]t makes no sense for the party to forgo an
appeal and instead file a motion for reconsid-
eration, especially since review of the denial of
a motion for reconsideration is highly deferen-
tial. … Since an appellate court is more likely
to correct an error than the tribunal that made
the error is (human nature being what it is), it
does not make any sense to forgo an appeal in
favor of a motion for reconsideration in a pure
rehash case such as this.
Ahmed, 388 F.3d at 250–51 (internal citations and quotation
marks omitted).
Before concluding, we must note that this is not the first
time He’s attorney, Scott Yu, has taken this misguided ap-
proach. Twice before, Yu has (1) challenged the Board’s rejec-
6 No. 14-3104
tions of an asylum application by filing with the Board a
frivolous motion to reconsider (frivolous because it failed to
identify an error of fact or law in the underlying decision),
and then (2) petitioned us for review, focusing not on the
denial of the motion to reconsider but instead on the denial
of the underlying merits—a decision that, for timeliness rea-
sons, we no longer have jurisdiction to review. See Tian v.
Holder, 564 F. App’x 242, 243–44 (7th Cir. 2014); Arriaga-
Hernandez v. Holder, 589 F. App’x 796, 797 (7th Cir. 2015). 2
Proceeding in this sequence typically forfeits any claim a
petitioner may have in challenging the underlying denial of
relief. Yu’s advocacy has not served his clients. In light of his
repeatedly mistaken performance in recent cases at the ex-
pense of his clients, we direct the clerk of this court to send a
copy of this opinion to the Illinois Attorney Registration and
Disciplinary Commission of Illinois for any action it deems
appropriate. If this problem recurs with Mr. Yu, this court
may take action to impose appropriate sanctions directly for
frivolous appeals.
We DENY the petition for review.
2 In a third recent case, Zhou v. Holder, 587 F. App’x 330, 332 (7th Cir.
2014), attorney Yu focused much of the petition on arguing the merits of
an untimely asylum application, a challenge over which we also did not
have jurisdiction.