Wei Weng v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-3287
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WEI WENG a/k/a YONG QIANG WANG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
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On Petition for Review of a Decision of the Board of Immigration Appeals
(BIA-1 No. A073-183-565)
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
July 7, 2015
Before: FUENTES, SLOVITER, and ROTH, Circuit Judges
(Filed: October 15, 2015)
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OPINION
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
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
FUENTES, Circuit Judge:
Wei Weng challenges the Board of Immigration Appeals’s denial of his motion to
reopen decade-old immigration proceedings.
Weng is a Chinese national who, after arriving in the United States, applied for
asylum in 1993.1 He was thereafter charged with unauthorized entry and removability. In
February 1997, an immigration judge held a hearing in Philadelphia on the charges and on
Weng’s asylum petition. Neither Weng nor his counsel attended—according to Weng
because they did not receive notice—and Weng was ordered deported in absentia.
Weng remained in the country, married a Chinese asylee, and had two children. In
2008, he filed a motion to reopen supported by a new asylum application.2 An
immigration judge denied the motion, but the Board vacated and remanded on the basis
that the immigration judge did not sufficiently explain her reasoning. On remand, Weng
argued his case should be reopened because (a) he was not notified of the hearing in
which he was ordered deported in absentia; and (b) he was likely to be persecuted in
China under the country’s one-child policy. Weng further argued that he was entitled to
adjustment of status on the basis of the lawful permanent resident status of his wife. The
immigration judge rejected the first two arguments, concluding that immigration
authorities adequately notified Weng and/or his attorney of the 1997 hearing, and that,
while changed country circumstances can be a basis for reopening an immigration case,
1
The record and the briefs are not consistent on whether Weng first arrived in the United
States in 1990, 1992, or 1993.
2
Weng’s new circumstances were changes in personal circumstances that did not warrant
reopening. Sua sponte, however, the immigration judge found that Weng might show
ineffective assistance of counsel regarding his actual knowledge of the date and location
of his 1997 hearing. She ordered the petition reopened without assessing Weng’s
entitlement to adjustment of status.
On appeal to the Board, the Board upheld the immigration judge’s determination
that Weng was effectively notified of the 1997 hearing and that Weng failed to show
changed country conditions. The Board vacated, however, the immigration judge’s sua
sponte determination that Weng’s petition should be reopened because of ineffective
assistance of counsel. According to the Board, even if Weng had attended the 1997
hearing, his asylum application would have then failed because it “was based on a
fabricated claim and supported by false documents [and] he has not shown there would
have been any other basis for relief from deportation even if he had appeared at the
hearing.” Concluding that Weng was not entitled to a change in status, either, the Board
denied the motion to reopen, and this petition followed.3
“We review the [Board]’s denial of a motion to reopen for abuse of discretion, and
review its underlying factual conclusions related to the motion for substantial evidence.”4
2
The new application was filed under the name Yong Qiang Wang.
3
We have jurisdiction over a petition for review of a final order of removal under
8 U.S.C. § 1252.
4
Caushi v. Att’y Gen. of U.S., 436 F.3d 220, 225-26 (3d Cir. 2006) (internal citations
omitted).
3
We may only reverse if the denial was “arbitrary, irrational, or contrary to law.”5 Here,
Weng presents four arguments for why we should vacate or reverse the decision of the
Board. Each lacks merit.
First, Weng argues that the Board lacks jurisdiction to review an immigration
judge’s decision to reopen a case sua sponte, such that the Board could not have vacated
the immigration judge’s order here. Generally speaking, “[t]he [Board]'s authority to sua
sponte reopen removal proceedings comes from 8 C.F.R. § 1003.2(a), which states that
‘[t]he Board may at any time reopen or reconsider on its own motion any case in which it
has rendered a decision.’”6 Meanwhile, “[t]he Board may review questions of law,
discretion, and judgment and all other issues in appeals from decisions of immigration
judges de novo.”7 Because an ineffective assistance of counsel question is such an issue,
Weng’s jurisdictional argument is unavailing.8
Second, Weng argues that the Board abused its discretion by concluding that
ineffective assistance of counsel did not warrant sua sponte reopening here. Whether or
not Weng is right on the merits, this is no basis for relief, for “the [Board] has ‘unfettered
5
Id. at 226.
6
Chehazeh v. Att’y Gen. of U.S., 666 F.3d 118, 128 (3d Cir. 2012).
7
8 C.F.R. § 1003.1(d)(3)(ii).
8
Weng further suggests that the Board was wrong to reverse the immigration judge’s
ineffectiveness determination because the Board’s analysis was inconsistent with its past
practice and/or arbitrary and capricious for want of established policy. We see no basis
for either argument.
4
discretion to decline to sua sponte reopen,’ even when there is an exceptional
situation[.]”9
Third, Weng argues that his wife’s status as a lawful permanent resident and asylee
entitles to him to change his own status under 8 U.S.C. § 1255(a). Section 1255(a)
provides that “[t]he status of an alien who was inspected and admitted or paroled into the
United States . . . may be adjusted . . . to that of an alien lawfully admitted for permanent
residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible
to receive an immigrant visa and is admissible to the United States for permanent
residence, and (3) an immigrant visa is immediately available to him at the time his
application is filed.” The Board rejected this argument on the basis that there was no
indication that Weng had filed a visa application.10 Further, the Board noted that the
record was inconsistent as to whether Weng was “admitted or paroled into the United
States or whether he entered without inspection.” Consistent with this latter analysis,
there is record evidence suggesting Weng entered Hawaii in 1992, went back to China,
and then returned to New York in 1993, such that Weng has forfeited the status of an
“admitted or paroled” alien. As this provides a factual basis for the Board’s assessment
that is well-grounded in the record, we cannot conclude that the Board’s determination on
9
Chehazeh, 666 F.3d at 129 (quoting Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d
Cir. 2003)).
10
The immigration judge, by contrast, explained that “while there [was] no evidence in
the record that [the relevant] form had been filed, the fact that [Weng] and his wife have a
child together is a strong factor weighing in favor of a finding that their marriage is bona
fide.” According to Weng’s brief, the relevant I-130 form was filed on June 29, 2011 and
5
this point was arbitrary, irrational, or contrary to law.”11
Finally, Weng argues that he is qualified for a favorable exercise of prosecutorial
discretion under Department of Homeland Security policy. Though the government makes
no attempt to explain why deportation of Weng comports with the Department’s current
immigration priorities, it need not do so. The Department of Homeland Security’s
exercise of its jurisdiction is beyond our review.12
As we lack a basis to conclude the Board’s decision was “arbitrary, irrational, or
contrary to law” we will deny the petition to reopen.13
approved on September 16, 2013, while the instant federal petition was pending.
11
Caushi, 436 F.3d at 225-26.
12
See Cheruku v. Att’y Gen. of U.S., 662 F.3d 198, 211-12 (3d Cir. 2011) (McKee, C.J.,
concurring) (“Some of the discretionary factors that [Immigration and Customs
Enforcement] will consider include the person’s criminal history or lack thereof, whether
the person is otherwise likely to be granted temporary or permanent status or other relief
from removal, and the person's length of presence in the United States. [But] it is
certainly not our place to tell an administrative agency how to apply its policies . . . .”).
13
Caushi, 436 F.3d at 226.
6