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
Lin_Jiang_v._Eric_Holder_Jr..pdf 
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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).

A court of appeals also may set aside a decision in which the BIA has abused its discretion in applying the law to the facts-7th Cir

Kucana v. Holder, No. 07-1002
"The Supreme Court remanded this proceeding to the 7th Circuit for decision on the merits after holding that 8 U.S.C. §1252(a)(2)(B) does not affect judicial review of situations in which immigration officials’ discretion is specified by regulation rather than statute. Kucana v. Holder, 130 S. Ct. 827 (2010). Our original opinion, 533 F.3d 534 (7th Cir. 2008), had held that No. 07-1002 a decision by the Board of Immigration Appeals declining to reopen a removal proceeding may be reviewed only to determine whether the Board misunderstood a regulation, a statute, or the Constitution. 8 U.S.C. §1252(a)(2)(D).  The Justices concluded that a court of appeals also may set aside a decision in which the Board has abused its discretion in applying the law to the facts.

Agron Kucana contends that the Board abused its discretion in two ways: by not discussing an affidavit submitted in support of the motion to reopen, and by disregarding his eligibility for adjustment of status. Our 2008 opinion understood the second of these arguments to be a legal one and rejected it as forfeited: Kucana did not make such an argument to the Board, which is not required to consider possibilities never presented for decision. 533 F.3d at 538–39. It is unnecessary for us to revisit that subject. The only remaining question concerns the Board’s decision not to mention the affidavit."

On remand from the Supreme Court for a ruling on the merits after its holding that 8 U.S.C. section 1252(a)(2)(B) does not affect judicial review of situations in which immigration officials' discretion is specified by regulation rather than statute, and that a court of appeals also may set aside a decision in which the Board has abused its discretion in applying the law to the facts, Albanian citizen's petition for review of the BIA's refusal to reopen removal proceedings is denied as the Board's conclusion that the evidence did not show a material adverse change in country conditions between 2002 and 2006 did not constitute an abuse of discretion.

Law professor Amanda Leiter (Catholic) argued as amicus against judicial review because Solicitor General Elena Kagen agreed with the petitioner on the availability of judicial review of the denial of a motion to reopen.

Having overslept, Kucana, a citizen of Albania, missed a hearing on his asylum and withholding of removal claims. He sought a motion to reopen the proceedings, which the immigration court and BIA denied. The Seventh Circuit dismissed the petition for review for lack of jurisdiction, a holding in conflict with six other circuits. The Suoereme Court granted certiorari to resolve the conflict.

Justice Ruth Bader Ginsburg wrote the opinion for the Court. Justice Samuel Alito concurred in the judgment. The Court ruled that the applicable provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 by its terms only barred the review of the discretionary judgments by the Attorney General, not the discretionary determinations delegated by the Attorney General to the Board of Immigration Appeals. Thus, the Court held that courts of appeals have the authority to review denials of motions to reopen by the BIA.

The Court expressed the view that a motion to reopen is an "'important safeguard'" (citing Dada v. Mukasey, 554 U.S. 1 (2008). This is a very different approach to motions to reopen than seen in years past, with the Court (INS v. Wang (1981) and INS v. Abudu (1988)) emphasizing the need for the courts to defer to the judgment of the BIA on motions to reopen. In the Court's estimation, the language of the statute, the history of the statute and regulations, and the presumption favoring judicial review of administrative action, all militated in favor of judicial review of the denial of a motion to reopen.

Establishing good cause for a continuance of proceedings-7th Cir. 2010

Juarez v. Holder, No. 08-1788: Denial of Motion to Reopen/Noncompliance with Biometrics Requirements

Juarez v. Holder (Sykes) 
Oral Argument | Full Text

Petition for review BIA's decision that petitioners' untimely applications and failure to provide the required biometrics meant they had abandoned their applications for relief is denied where: 1) the petitioners were given ample time to file their applications for relief and provide biometrics and did not have good cause for their delay; and 2) the IJ did not abuse his discretion in denying their motion for a continuance; and 3) IJ did not abuse his discretion in denying their requests for relief because of their failure to comply with these application prerequisites.

Bd. did not err in affirming IJ's removal order after IJ found that aliens' applications seeking relief from removal were untimely since they were filed 14 months after deadline set forth by IJ and lacked required set of fingerprints. Applicable regulatory scheme (8 CFR section 1003.31(c)) permits IJs to set time limits for filing applications seeking relief from removal, and instant failure by aliens to file timely applications or supply required fingerprints within deadline constituted waiver of applications. Fact that one alien's asylum application had been filed prior to April 1, 2005 effective date of instant regulations was irrelevant.

The petitioners are a mother and son from Guatemala who entered the U.S. illegally in 1989 and 1997, respectively. The mother filed for asylum after her arrival, but the immigration authorities did not adjudicate the application. Removal proceedings were commenced against both petitioners in 2004, and they conceded the charges. The lead respondent, Ms. Juarez, advised the IJ that she intended to file for cancellation of removal and to pursue her asylum application filed in 1990. Her son expressed an intention to file his own asylum application as he was not considered a derivative on his mother's case. The petitioners' attorney advised the IJ that he required 60 days to file the applications. The IJ approved this request and set the filing date for September 26, 2005, with the individual hearing date set for November 13, 2006. The IJ informed both petitioners that they needed to provide fingerprint and biographical information before the date of the next hearing in order to be eligible for relief. Indeed, the IJ addressed the petitioners individually and instructed them both to “pester your attorney” to get the fingerprints submitted on time. Their attorney acknowledged his familiarity with the biometrics procedures and said that he understood that the process could take some time. The applications were not filed within the time set by the IJ nor did the petitioners comply with the biometrics requirements. Less than a week before the November 2006 hearing, they filed motions asking for a continuance. Their attorney advised the IJ that the applications had been filed, but he had not yet received official confirmation in order to arrange the fingerprinting appointment. Counsel admitted that he had been unable to devote adequate time to preparing his clients' cases.

The IJ denied the continuance motion, reasoning that good cause had not been shown. The asylum application actually arrived at the court five days before the individual hearing date and the cancellation application arrived on the hearing date, but after the hearing had been concluded. As pointed out by the circuit court, the applications were filed 14 months late. Although conceding that good cause was absent, petitioners' counsel argued before the IJ that his clients should not be penalized for missing the court's deadlines when the immigration authorities had not acted on the lead petitioner's asylum application for more than a decade. The IJ agreed with DHS counsel that the petitioners had abandoned their claims by failing to submit fingerprints or timely filing their relief applications, and consequently ordered their removal. An appeal was filed with the BIA, but the petitioners' attorney failed to file a brief. Finding the IJ's decision to be valid, the Board dismissed the appeal.

The circuit court explained that, in light of the Supreme Court's decision in Kucana v. Holder, 130 S. Ct. 827 (2010) (holding that the courts have jurisdiction to review denials of motions to reopen), its review in regard to the denial of the continuance was plenary, thus retreating from its prior decision in Iqbal Ali v. Gonzales, 502 F.3d 659 (7th Cir. 2007), which held that the court lacked jurisdiction over such a matter. The court cited to the applicable regulation--8 CFR § 1003.31(c)--authorizing IJ's to set and extend time limits for filing of applications and related documents, and providing that if an application is not filed within the time period it shall be deemed to be waived. It also cited to 8 CFR § 1003.47(c), providing that an alien's failure to comply with processing requirements for biometrics and other biographic information within the time allowed will result in dismissal of the application, unless the applicant demonstrates that such failure was the result of good cause. It also referred to 8 CFR § 1003.29, which provides that an IJ may grant a motion for continuance for good cause shown.

The court concluded that the IJ was well within his discretion in denying the petitioners' continuance motion and their requests for relief from removal as well. It rejected the petitioners' contention that 8 CFR § 1003.47 (the biometric regulation) is ultra vires, pointing out that by statute the Attorney General (AG) is prohibited from granting asylum to any applicant until his or her identity is checked against all appropriate records or databases to determine any ground on which the alien may be inadmissible or deportable from the U.S. or ineligible to apply for or be granted asylum, citing to INA § 208(d)(5)(A)(i) [8 USCA § 1158(d)(5)(A)(i)]. The court declared that the 60 days provided to file was “plenty of time.” The court also ruled that the government's delay in the matter was not a relevant factor, citing to Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999) (decision when to initiate removal proceedings is in the discretion of immigration authorities). The court observed that the petitioners had been represented by the same attorney throughout the proceedings so there was no claim for ineffective assistance of counsel; however, the court directed the court clerk to transmit a copy of the opinion to the Arkansas Committee on Professional Conduct and the Department of Justice's Executive Office for Immigration Review.

Motion to Reopen After Departure from U.S./Sua Sponte Authority to Consider Belated Motions

CA7 affirmed denial of motion to reopen by departed alien, finding that petitioner’s motion was unquestionably time-barred where petitioner offered no basis to excuse a six-plus year delay in moving to reopen. (Munoz de Real v. Holder, 2/11/10).

A petition for review, a BIA's decision affirming IJ's denial of a Mexican national's motion to reopen removal proceedings on the ground that based on intervening developments in the law, the conviction of felony drunk driving was not a proper basis for removal, is denied as petitioner's motion to reopen was unquestionably time-barred.

Read Munoz de Real v. Holder, No. 09-1945

Appellate Information: On Petition for Review from an Order of the Board of Immigration Appeals Decided February 11, 2010

Judges: Before: Easterbrook. Chief Judge, and Kanne, Circuit Judges, and Kennelly, District Judge Opinion by District Judge Kennelly

In Munoz De Real v. Holder, 2010 WL 455404 (7th Cir. 2010), the U.S. Court of Appeals for the Seventh Circuit, in denying a petition for review, upheld an order by the BIA which refused to a reopen a final removal order against a Mexican citizen who claimed that the order was rendered a “legal nullity” by virtue of a Seventh Circuit decision after his physical removal, which decision held that drunk driving offenses are not “crimes of violence.” The circuit court did not reach the legal issue of whether the fact of the alien's departure from the U.S. precluded his motion but ruled that IJ's declination to exercise her sua sponte authority to entertain the petitioner's belated motion was justified and therefore did not constitute an abuse of discretion.

In January 2001, the petitioner, a former legal permanent resident of the U.S., was convicted of operation of a motor vehicle while intoxicated (OWI), with a prior OWI, in violation of Indiana law. At the time of his conviction, this offense was considered an aggravated felony (crime of violence). Removal proceedings were commenced against him pursuant to INA § 237(a)(2)(iii) [8 USCA § 1227(a)(2)((iii)], and an IJ ordered his removal on April 11, 2001. The petitioner did not challenge the IJ's order, and he left the country shortly after its issue. In December 2007, he moved to reopen his removal proceedings, citing to the Seventh Circuit's opinion in Bazan-Reyes v. I.N.S., 256 F.3d 600 (7th Cir. 2001), decided in July 2001, and ruling that drunk-driving offenses are not crimes of violence and therefore not aggravated felonies for the purposes of determining an alien's removability. The IJ denied this motion in December 2008 for lack of jurisdiction pursuant to 8 CFR § 1003.23(b)(1) because the petitioner had departed the U.S. The IJ further ruled that there was no basis to reopen the proceeding sua sponte because the 2001 removal order was lawful and in accordance with the law at the time when it was issued and did not result in a “gross miscarriage of justice.” In affirming the IJ's ruling, the BIA relied on its precedent decision, Matter of Armendarez-Mendez, 24 I. & N. Dec. 646, 2008 WL 4490316 (B.I.A. 2008), which held that immigration courts lack jurisdiction over a motion to reopen filed by an alien who has departed the U.S.

The Circuit Court explained that, pursuant to the Supreme Court's recent decision in Kucana v. Holder, 2010 WL 173368 (U.S. 2010), it had jurisdiction to review the denial of a motion to reopen (MTR) a removal proceeding. It indicated that the Seventh Circuit had not yet considered the question of whether the aforesaid regulation, precluding aliens who had departed the U.S. following a removal order from filing an MTR, was in conflict with the general statute authorizing MTRs, INA § 240(c)(7)(A) [8 USCA § 1229a(c)(7)(A)]. It observed that the Fourth and Ninth Circuits have ruled that immigration courts may hear such MTRs on behalf of departed aliens but concluded that it did not need to determine the effect of the regulatory departure bar in the instant case.

The court pointed out that INA § 240(c)(7)(A) requires that an MTR be filed within 90 days of the entry of an order of removal and that this 90-day period expired over six years before the petitioner filed his MTR. The court noted that the petitioner had argued that he had received ineffective assistance of counsel from the attorney who handled his removal proceedings and that this factor should excuse his untimely filing of the MTR. The court responded that attorney negligence is not, without more, a basis to toll a statute of limitations. Moreover, it stated that the petitioner offered no basis to excuse a six-plus-year delay in moving to reopen.

In addressing the petitioner's contention that the IJ erred by not recognizing her sua sponte discretion to consider the belated MTR, the court considered that the IJ did in fact reach the question of whether to exercise such discretion to reopen the case but chose not to do so. It emphasized that the IJ found that there was insufficient evidence that the removal order was a gross miscarriage of justice such as to justify its reopening. The court determined that the petitioner had offered nothing to suggest that the IJ's finding in that regard was an abuse of discretion.

Voluntary Departure, conclusion of removal proceedings

Supreme Court Holds that Alien Must Be Allowed to Withdraw Request for Voluntary Departure but Voluntary Departure Is Not Automatically Tolled
Dada v. Mukasey, 128 S. Ct. 2307 (U.S. June 16, 2008)

Petitioner, a native and citizen of Nigeria, who had requested and been granted voluntary departure, petitioned for review of Board of Immigration Appeals' (BIA) denial of petitioner's request to withdraw voluntary departure. The Court of Appeals for the Fifth Circuit, 207 Fed.Appx. 425, affirmed BIA's denial of request to withdraw voluntary departure.

Holding: The Supreme Court, Justice Kennedy, held that to safeguard the right to pursue a motion to reopen for voluntary departure recipients, petitioner had to be permitted an opportunity to withdraw a motion for voluntary departure, provided the request was made before the departure period expired. Reversed and remanded.

Justice Scalia, with whom Chief Justice Roberts and Justice Thomas joined, dissented and filed opinion.

Justice Alito dissented and filed opinion.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 provides that every alien ordered removed from the United States has a right to file one motion to reopen his or her removal proceedings. 8 U.S.C.S. § 1229a(c)(7). The Act also provides, however, that if the alien's request for voluntary departure is granted after he or she is found removable, the alien is required to depart within the period prescribed by immigration officials, which cannot exceed 60 days. 8 U.S.C.S. § 1229c(b)(2). Failure to depart within the prescribed period renders the alien ineligible for certain forms of relief, including adjustment of status, for a period of 10 years. 8 U.S.C.S. § 1229c(d)(1). Pursuant to regulation, however, departure has the effect of withdrawing the motion to reopen. 8 C.F.R. § 1003.2(d) (2007).

Voluntary departure is a discretionary form of relief that allows certain favored aliens -- either before the conclusion of removal proceedings or after being found deportable -- to leave the country willingly.

When voluntary departure is requested at the conclusion of removal proceedings, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 provides a voluntary departure period of not more than 60 days. 8 U.S.C.S. § 1229c(b)(2). The alien can receive up to 120 days if he or she concedes removability and requests voluntary departure before or during removal proceedings. 8 U.S.C.S. § 1229c(a)(2)(A). Appropriate immigration authorities may extend the time to depart but only if the voluntary departure period is less than the statutory maximum in the first instance. The voluntary departure period in no event may exceed 60 or 120 days for § 1229c(b) and § 1229c(a) departures, respectively. 8 C.F.R. § 1240.26(f) (2007).

The voluntary departure period typically does not begin to run until immigration administrative appeals are concluded. 8 U.S.C.S. § 1101(47)(B). 8 U.S.C.S. § 1229c(b)(1) provides that the Attorney General may permit voluntary departure at the conclusion of removal proceedings.

An alien involuntarily removed from the United States is ineligible for readmission for a period of 5, 10, or 20 years, depending upon the circumstances of removal. 8 U.S.C.S. § 1182(a)(9)(A)(i), (ii). An alien who makes a timely departure under a grant of voluntary departure, on the other hand, is not subject to these restrictions -- although he or she otherwise may be ineligible for readmission based, for instance, on an earlier unlawful presence in the United States, § 1182(a)(9)(B)(i).

A motion to reopen is a form of procedural relief that asks the Board of Immigration Appeals to change its decision in light of newly discovered evidence or a change in circumstances since the hearing. Like voluntary departure, reopening is a judicial creation later codified by federal statute. The reopening of a case by the immigration authorities for the introduction of further evidence is treated as a matter for the exercise of their discretion; where the alien was given a full opportunity to testify and to present all witnesses and documentary evidence at the original hearing, judicial interference has been deemed unwarranted.

To safeguard the right to pursue a motion to reopen for voluntary departure recipients, an alien must be permitted an opportunity to withdraw a motion for voluntary departure, provided the request is made before the departure period expires; as a result, the alien has the option either to abide by the terms, and receive the agreed-upon benefits, of voluntary departure, or, alternatively, to forgo those benefits and remain in the United States to pursue an administrative motion. Immigration and Nationality Act, §§ 240(c)(7), 240B(b), (d)(1), 8 U.S.C.A. §§ 1229a(c)(7), 1229c(b), (d)(1).

"The Attorney General may permit an alien voluntarily to depart the United States at the alien's own expense if, at the conclusion of a proceeding under section 1229a of this title, the immigration judge enters an order granting voluntary departure in lieu of removal and finds that--

"(A) the alien has been physically present in the United States for a period of at least one year im- mediately preceding the date the notice to appear was served under section 1229(a) of this title;

"(B) the alien is, and has been, a person of good moral character for at least 5 years immediately preceding the alien's application for voluntary departure;

"(C) the alien is not deportable under section 1227(a)(2)(A)(iii) or section 1227(a)(4) of this title; and

"(D) the alien has established by clear and convincing evidence that the alien has the means to depart the United States and intends to do so." 8 U.S.C. § 1229c(b)(1).