Chun Ming Chiang v. Ashcroft

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 23, 2004
Charles R. Fulbruge III
Clerk
No. 03-60750
Summary Calendar
CHUN MING CHIANG, also known as Chun Ming Jiang,
Petitioner,
versus
JOHN ASHCROFT, U S ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A77 753 412
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Before JONES, BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
Chun Ming Chiang (“Chiang”) petitions this court for review
of the Board of Immigration Appeals’ (“BIA”) decision denying his
motion for reconsideration of the BIA’s dismissal of his appeal
from the Immigration Judge’s (“IJ”) denial of his motion to
reopen removal proceedings held in absentia. Chiang filed his
petition for review within 30 days of the BIA’s final order
denying his motion to reconsider. However, Chiang did not file a
petition for review within 30 days after the BIA dismissed his
*
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that this opinion should not be published and is not precedent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. 03-60750
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appeal. Thus, this court has no jurisdiction to review that
decision. See 8 U.S.C. § 1252(a)(1), (b)(1) (2000); Karimian-
Kaklaki v. INS, 997 F.2d 108, 111 (5th Cir. 1993).
Chiang challenges the BIA’s finding that he received oral
notice of the removal hearing. In ruling on the reconsideration
motion, the BIA stated that even assuming that Chiang did not
have oral notice, his failure to appear was the result of his own
inaction, not that of his attorney. Thus, the BIA did not abuse
its discretion in denying reconsideration of whether Chiang
received oral notice.
Chiang also challenges the BIA’s finding that Chiang could
go to attorney Tung Lam’s office to file a change-of-venue motion
upon his release from custody. Whether Chiang had or was refused
Lam’s address was not a factor in the BIA’s decision to deny
reconsideration. The BIA determined that because Chiang knew in
April 2001 that Lam had abandoned him and because Chiang did not
file a change of address with the IJ, Chiang should have
contacted the IJ for information about his hearing. Thus, the
BIA concluded that Chiang’s failure to appear at the removal
hearing was not the result of exceptional circumstances out of
Chiang’s control. The BIA did not abuse its discretion in
denying reconsideration of whether Chiang had Lam’s office
address.
Citing Ogbemudia v. INS, 988 F.2d 595 (5th Cir. 1993),
Chiang asserts that in determining that he should have inquired
No. 03-60750
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independently regarding the hearing date after his April 2001
phone conversation with Lam’s office, the BIA should have
considered that Chiang had not been educated in the United
States, was illiterate in English, had no knowledge of removal
proceedings, had only an elementary education in China, had only
been in the United States for four months, had no relatives in
the United States to give any help, and did not know the sponsor
for his release from detention which Lam had provided. Although
these may be factors the BIA could have considered in determining
whether Chiang should have inquired independently about his
hearing date, Ogbemudia does not establish factors which the BIA
was required to consider. Accordingly, Chiang has shown no legal
error.
Chiang also asserts that he filed an asylum application with
his motion to reopen, and the BIA has “completely ignored” this
application. This assertion is spurious. Chiang attached his
asylum application to his motion to reopen, and the IJ notified
Chiang that his asylum motion had not been filed properly.
Chiang has failed to show that the BIA abused its discretion
by denying his motion to reconsider. See Lara v. Trominski, 216
F.3d 487, 496 (5th Cir. 2000). Accordingly, the petition for
review is DENIED.