Thursday, March 24, 2011

Lin Jiang, Seventh Circuit: Asylum/Motion to Reopen/Ineffective Assistance of Counsel/Changed Country Conditions

Lin Jiang v. Eric Holder, Jr., 09-3179
Court of Appeals for the Seventh Circuit. Friday, March 18th, 2011
Status: Published/Precedential

In Lin Xing Jiang v. Holder, 2011 WL 923279 (7th Cir. 2011), the U.S. Court of Appeals for the Seventh Circuit denied a petition for review filed by a citizen of China who had unsuccessfully endeavored to reopen her completed removal proceeding in order to advance new claims for asylum based on her contention that her previous attorney had neglected to present a claim of religious persecution to the immigration court and on her alleged fear of persecution due to having giving birth to two children in the U.S. The circuit court ruled that the Board's decision did not constitute an abuse of discretion inasmuch as the petitioner had not complied with the procedural requirements pertaining to ineffective assistance of counsel (IAC) claims and she had not established changed country conditions in her native China in order to excuse her belated motion to reopen (MTR).

The petitioner came to the U. S. Virgin Islands in 2000 and was subsequently placed into removal proceedings for being present in the U.S. without having been admitted or paroled. She filed for asylum, claiming that she had been forced to abort a pregnancy by the Chinese government. The IJ concluded that her story was not credible and thus denied her applications for asylum, withholding of removal, and Convention Against Torture (CAT) relief. She appealed the IJ's decision to the BIA, which affirmed the decision without an accompanying opinion. Over four years later, well-beyond the 90-day statutory period, she filed her MTR seeking an exemption based on changed country conditions, citing 8 CFR § 1003.2(c)(3)(i). She asserted, for the first time, that she feared persecution based on her Catholic religion. She also cited, as new evidence, the fact that, since the time of her immigration court hearing, she had given birth to two children in the U.S. in violation of China's family planning policies. In addition, she averred that circumstances had worsened for practicing Catholics in China and that, should the U.S. remove her to her country, she would return to her former underground church and risk persecution. She also related that, although she had told her immigration lawyer that she had grown up as a Catholic in China, he did not include a claim for religious persecution in her initial petition for asylum.

In rejecting this MTR, the Board concluded that the petitioner had not submitted adequate evidence that members of underground churches were in more danger than they had been at the time of her hearing in 2002. The Board noted that the petitioner neither specifically claimed that her former attorney had been ineffective nor complied with the requisite procedural formalities for an IAC claim. In a footnote, the Board identified an additional procedural deformity by virtue of the petitioner's failure to submit a new application as part of the MTR.

Before the circuit court, the petitioner conceded that the evidence presented with her motion was not technically “new” evidence. She asserted, however, that it was not available at the initial hearing before the IJ because her attorney failed to present it, thus depriving her of the opportunity to present all of her persecution claims. Citing to Toure v. Holder, 624 F.3d 422 (7th Cir. 2010), the court pointed out that asylum seekers hold no Sixth Amendment right to counsel, but that it has recognized that the denial of effective assistance of counsel may, under certain circumstances, violate the due process guarantee of the Fifth Amendment. It noted that the Board has historically acknowledged this potential for a due process violation and has formulated explicit requirements for a litigant to advance an IAC claim in a precedent decision, Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988). Explaining that the court has previously upheld the Lozada protocol (including the necessity to provide an affidavit establishing the agreement with counsel, provision of notice to counsel with an opportunity to respond to the allegations, and filing of a complaint with the governing disciplinary authorities or explaining why this was not accomplished), the court observed that the petitioner failed to satisfy any of the Lozada requirements or to even articulate a specific claim of IAC.

The court also concluded that the petitioner failed to demonstrate that there were material changes in the relevant circumstances in China, declaring that cumulative evidence that the conditions asserted in the original application persisted fails to meet this burden. The court took judicial notice of the State Department's 2009 Country Report, which actually offers a glimmer of hope for practicing Catholics as it suggests a relaxation of controls over their unregistered churches. In regard to the petitioner's expression of concern for having two children in the U.S. in contravention of China's one-child policy, the court cited to its prior decision in Cheng Chen v. Gonzales, 498 F.3d 758 (7th Cir. 2007), which held that an asylum applicant cannot claim changed country conditions based on her own actions in the U.S. when the conditions in the country of origin have not materially changed. In light of the failure of the petitioner to have timely petitioned the court following the BIA's initial decision against her, the court declined to address her arguments regarding the merits of her original asylum claim.

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture or CAT), was opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp No. 51 at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the U.S. Apr. 18, 1988).

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