Zhong He Chen v. Board of Immigration Appeals

437 F.3d 267

Zheng Zhong CHEN, Petitioner,
v.
Alberto R. GONZALES,1 Respondent.

Docket No. 04-6554-AG.

United States Court of Appeals, Second Circuit.

Submitted: February 6, 2006.

Decided: February 13, 2006.

Aleksander Milch, Christophe & Associates, P.C., New York, for Petitioner.

G.F. Peterman III, Acting United States Attorney, Dean S. Daskal, Assistant United States Attorney, Columbus, Georgia, for Respondent.

Before: NEWMAN, JACOBS, HALL, Circuit Judges.

PER CURIAM.

1

Zheng Zhong Chen petitions for review of a Board of Immigration Appeals ("BIA") decision denying his motion to reopen his removal proceedings. The BIA denied Chen's motion to reopen because it was filed beyond the ninety-day time limit set in 8 C.F.R. § 1003.2(c)(2). We find no abuse of discretion, and affirm.

I.

2

Chen is a native and citizen of China. Through his original counsel, Robert E. Porges, Chen applied for asylum (and withholding of deportation) in 1996, on the ground of political persecution. The asylum application and Chen's in-court testimony state that he had been operating a delicatessen in China when a town official told him he should move his store elsewhere because it was competing with a store nearby owned by a relative of the town party secretary. Chen refused to move and as a result he was allegedly subject to threats, harassment, and police beating. Chen testified that he ultimately left China because the police pursued him after he sat in front of the county government building with a sign that criticized the government.

3

After a hearing in September 1996, the Immigration Judge ("IJ") found Chen not credible and denied his application for relief. Chen, by Porges, appealed to the BIA, which affirmed the IJ's decision on May 7, 1998. Almost four years later, on May 23, 2002, Chen, by new counsel, Andrew J. Wilson, moved to reopen on the ground of persecution under China's coercive population policies. Chen alleged that his wife was forced to undergo an abortion and that he was forcibly sterilized for their opposition to the family planning regime. Chen explained that his previous attorney, Porges, had instructed him not to mention family planning issues in his asylum application and hearing testimony.

4

In December 2002, the BIA denied the motion to reopen because it was filed out of time and because it presented no evidence that was unavailable at the time of the initial hearing, as required under 8 C.F.R. § 1003.2(c)(1).

5

On August 23, 2004, Chen, by his current (and third) counsel, Aleksander Milch, filed a second motion to reopen, claiming changed circumstances pursuant to 8 C.F.R. § 1003.2(c)(3)(ii), changes in applicable law, and ineffective assistance of counsel. With respect to his ineffective assistance claim, Chen argued that his first lawyer (Porges) ineffectively represented him in his deportation hearing and on appeal to the BIA, and that his second lawyer (Wilson) filed a "frivolous" motion to reopen.

6

In December 2004, the BIA denied Chen's second motion to reopen because he failed to meet the exception for untimely motions under § 1003.2(c)(3)(ii), and because he demonstrated neither the exercise of due diligence in presenting his claim to justify equitable tolling, nor exceptional circumstances to justify reopening under the BIA's sua sponte authority. Chen challenges each of these rulings as an abuse of discretion.

II.

7

We review the BIA's denial of a motion to reopen or reconsider for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam); Khouzam v. Ashcroft, 361 F.3d 161, 165 (2d Cir.2004). An abuse of discretion may be found where the BIA's decision "provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner." Kaur, 413 F.3d at 233-34 (quoting Ke Zhen Zhao v. DOJ, 265 F.3d 83, 93 (2d Cir.2001) (internal citations omitted)).

8

A motion to reopen must generally be filed no later than ninety days after the date on which the final administrative decision was rendered in the proceedings sought to be reopened. 8 C.F.R. § 1003.2(c)(2). The ninety-day period does not apply to a motion to reopen that is based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, "if such evidence is material and was not available and could not have been discovered or presented at the previous hearing." § 1003.2(c)(3)(ii). The time limit may be equitably tolled if there is a claim for ineffective assistance of counsel, and the petitioner demonstrates both that his constitutional right to due process was thereby violated, and that he exercised due diligence in pursuing the case during the period for which tolling is sought. Iavorski v. INS, 232 F.3d 124, 135 (2d Cir.2000).

9

The BIA denied Chen's motion to reopen because it was filed beyond the ninety-day time limit under § 1003.2(c)(2). Without considering the merits of Chen's ineffective assistance claim, the BIA ruled that, because Chen failed "to show why his claims against counsel were not brought for over one and a half years after [the BIA] denied the previous motion to reopen," he failed to show that he exercised due diligence in pursuing his claims during that time; therefore, equitable tolling was unavailable to him.

10

The BIA did not abuse its discretion. Chen did not qualify for the exception for untimely motions under § 1003.2(c)(3)(ii) because he failed to show either changed circumstances in China affecting his particular situation, or that new, material evidence could not have been submitted at his previous hearing. The information Chen introduced to support his motion to reopen consists of letters, certificates, a report of his alleged sterilization, a 2002 U.S. State Department Country Report on China, and several documents which are either undated or date from 2001 or before. All of this information was apparently available in 2002, when Chen made his first motion to reopen. Moreover, the materials do not reflect changed conditions in China that impact Chen's particular situation since Chen filed his asylum application in 1996. The fact that Chen's account has changed does not trigger the exception to § 1003.2(c)(2).

11

The BIA's refusal to toll the time limit was likewise within its discretion. Chen raised his claims of ineffective assistance of counsel for the first time on August 23, 2004, twenty months after the BIA's December 20, 2002 decision. Neither the appeal to the BIA nor the petition to this Court reflects Chen's diligence in pursuing his case during those twenty months. See Iavorski, 232 F.3d at 135. The appeal to the BIA asserted that "he was a victim of ineffective assistance of counsel until he retained current counsel," and the petition to this Court asserts that his delay was due to his diligent efforts to collect additional evidence in order to make a bona fide motion to reopen. Given the passage of twenty months, the BIA's denial was within its discretion.

12

Finally, the BIA did not abuse its discretion in declining to exercise its sua sponte authority pursuant to 8 C.F.R. § 1003.2(a), having found that Chen's case presented no exceptional situation, particularly given his lack of diligence in pursuing the claim. See Zhong Guang Sun v. DOJ, 421 F.3d 105 (2d Cir.2005) (finding that the BIA must consider petitioner's claim that his late filing of a notice of appeal was due to extraordinary or unique circumstances). Indeed, to the extent Chen's case is exceptional, it is only in ways that militate against relief. Chen signed and swore to an asylum application that was fabricated with regard to essential elements of his claim; he testified before the IJ to the same falsehoods; and he continued the fraud on appeal to the BIA. While petitioners may assert a claim of ineffective assistance of counsel that rises to the level of a constitutional due process deprivation, due process does not insulate a petitioner from the consequence of his own dishonest acts. Moreover, it is unreasonable to think that an applicant who actually suffered such outrages as a forced abortion or involuntary sterilization would fail to mention it when asked what has driven him to flee his home country.

13

For the foregoing reasons, we deny Chen's petition. Having completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DENIED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Fed. R. of App. P. 34(a)(2), and Second Circuit Local Rule 34(d)(1).

Notes:

1

Pursuant to Fed. R. of App. P. 43(c)(2), Attorney General Alberto R. Gonzales is automatically substituted for former Attorney General John Ashcroft as the respondent in this case