Zhao v. I.N.S., Docket No. 03-4744-AG(L).

• Decision Date: 20 June 2006
• Docket Number: Docket No. 03-4744-AG(L).,Docket No. 04-1890-AG(CON).
• Citation: 452 F.3d 154
• Parties: Jin Bo ZHAO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

Page 154

452 F.3d 154

Jin Bo ZHAO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Docket No. 03-4744-AG(L).

Docket No. 04-1890-AG(CON).

United States Court of Appeals, Second Circuit.

Argued: June 13, 2006.

Decided: June 20, 2006.

Theodore N. Cox, New York, NY, for Petitioner.

Shelese Woods, Assistant United States Attorney (Susan W. Brooks, United States Attorney, on the brief), United States Attorney's Office for the Southern District of Indiana, Indianapolis, IN, for Respondent.

Before CABRANES, STRAUB and HALL, Circuit Judges.

PER CURIAM.

We consider here the level of diligence required by a petitioner to merit "equitable tolling" of the regulatory requirements for timeliness and numerosity of motions to reopen immigration decisions.

Petitioner Jin Bo Zhao, a native and citizen of the People's Republic of China ("China"), seeks review of two separate orders of the Board of Immigration Appeals ("BIA" or the "Board") denying his motions to reopen the Board's earlier order affirming the decision of Immigration Judge Charles M. Honeyman (the "IJ") that denied Zhao's application for asylum, withholding of removal, and voluntary departure and ordered him removed from the United States. Because we conclude that the BIA erred when it declined to toll its procedural requirements and dismissed Zhao's second motion to reopen or to reconsider as both time-barred and number-barred, we remand the cause to the BIA for consideration on the merits of Zhao's claim that ineffective assistance of counsel caused both (1) the initial rejection of Zhao's application by the IJ and (2) the BIA's dismissal of Zhao's first motion to reopen or to reconsider.

INTRODUCTION

A thorough recitation of the underlying procedural history is necessary to the resolution of this petition. Zhao entered the United States without inspection in April 1990. He applied for asylum and withholding of removal on the basis of his allegations that the Chinese government persecuted him on account of his political statements and activities. After conducting a hearing, the IJ determined that Zhao was not credible and had therefore not met his burden to establish a claim for asylum or withholding of removal. Accordingly, on January 24, 2000, the IJ denied Zhao's application and, after finding that Zhao did not qualify for voluntary departure, ordered him removed to China. In re Jin Bo Zhao, File No. A 71 499 437 (Immig. Ct., New York, Jan. 24, 2000). Zhao appealed the IJ's decision to the Board, which affirmed it on June 12, 2002. In re Jin Bo Zhao, File No. A 71 499 437 (BIA June 12, 2002).

Zhao, dissatisfied with the performance of the attorney who represented him before the IJ and in his appeal to the BIA, retained new counsel to file a petition in this Court for review of the BIA's decision affirming the IJ's order and also to file a motion with the BIA asking the Board to reopen Zhao's case on the basis of his original attorney's alleged ineffective assistance. Following the filing of a petition for review in this Court (Docket No. 02-4278), Zhao agreed with the Government to withdraw his petition so that he could pursue the ineffective assistance motion before the BIA—a withdrawal that would be without prejudice as long as Zhao reinstated his petition before this Court within thirty days of the BIA's eventual disposition of his motion.

In his initial "motion to reopen or reconsider," filed January 21, 2003, Zhao alleged that his original attorney "did not really care about his case and did not know the basic law regarding hearsay testimony in an asylum hearing." Although Zhao's accompanying affidavit offered detailed allegations concerning his original counsel's purported unfitness, Zhao did not explain why his motion to reopen was untimely. See 8 C.F.R. § 1003.2(c)(2) (requiring that such motions be filed within ninety days of the final decision being challenged). The BIA denied the motion as untimely on March 20, 2003, finding that Zhao "has offered no explanation as to why [his] motion was filed late." In re Jin Bo Zhao, File No. A 71 499 437 (BIA Mar. 20, 2003).

Zhao appealed the BIA's denial of his motion to reopen to this Court in what became Docket No. 03-4744. He did not, however, move in this Court to reinstate his original petition (despite his stipulation with the Government that he could do so). His original petition is therefore not before us. Sometime between March and September 2003, Zhao's counsel informed Zhao of his failure to reinstate his original appeal in this Court and recommended that Zhao yet again hire new representation. On September 8, 2003, Zhao retained his current attorney, who took over the active appeal in this Court and also filed, on December 5, 2003, a second "motion to reopen" with the BIA.

In his second motion to reopen, Zhao restated his allegation that his initial counsel before the IJ was defective and also argued that his second counsel was ineffective in failing (1) to timely file his original motion to reopen before the BIA (or to explain that its lateness was caused by his original counsel's failings), a failure that caused the BIA to dismiss it out of hand as untimely, and (2) to timely reinstate his original appeal with this Court, as would have been permitted under Zhao's stipulation with the Government. He requested that the BIA reissue its decision so that Zhao's petition for review in this Court could be renewed.¹ In addition, he asked the BIA to consider on the merits his prior allegations concerning his original counsel's performance before the IJ, which the BIA had originally dismissed as time-barred. Finding that this second motion to reopen was also time-barred, in addition to being "number-barred,"² the BIA denied Zhao's motion. See 8 C.F.R. § 1003.2(c)(2) ("[A] party may file only one motion to reopen deportation or exclusion proceedings...."). Zhao timely filed another petition for review in this Court, which became Docket No. 04-1890 and was consolidated for review with the active Docket No. 03-4744.

DISCUSSION

I. The BIA Correctly Denied Zhao's First Motion To Reopen as Time-Barred

Pursuant to 8 C.F.R. § 1003.2(c)(2), a "motion to reopen deportation or exclusion proceedings ... must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened." The BIA affirmed Judge Honeyman's decision on June 12, 2002. By filing his first motion to reopen on January 21, 2003, Zhao was well beyond the ninety-day deadline.

In its decision denying Zhao's motion to reopen as untimely, the BIA discussed our decision in Iavorski v. INS, 232 F.3d 124, 134-35 (2d Cir.2000), in which we stated that equitable tolling of the ninety-day filing deadline was permissible under the Immigration and Naturalization Act of 1952, as amended ("INA"). See Immigration Act of 1990, Pub.L. No. 101-649, § 545(d), 104 Stat. 4978, 5066 (directing the Attorney General, in amendment to the INA, to issue regulations concerning "the period of time in which motions to reopen and to reconsider may be offered in deportation proceedings, which regulations include a limitation on the number of such motions that may be filed and a maximum time period for the filing of such motions"); Motions and Appeals in Immigration Proceedings, 61 Fed.Reg. 18,900 (Apr. 29, 1996) (announcing final rule allowing filing of only one motion to reopen, which must be filed within ninety days of issuance of order alien seeks to reopen). Iavorski requires, however, that an alien seeking equitable tolling of this time limit exercise "due diligence" in vindicating his rights. See id. at 134 ("In a situation where fraud or concealment of the existence of a claim prevents an individual from timely filing, equitable tolling of a statute of limitations is permitted until the fraud or concealment is, or should have been, discovered by a reasonable person in the situation."); see also Ali v. Gonzales, 448 F.3d 515, 517-18 (2d Cir.2006) (concluding that BIA did not abuse its discretion in finding that alien had not exercised reasonable diligence); Cekic v. INS, 435 F.3d 167, 171 (2d Cir. 2006) (concluding that aliens seeking equitable tolling "were not reasonably diligent").

Zhao's first motion to reopen offered no explanation whatsoever, much less one the BIA was bound to accept, for its late filing.³ Accordingly, we conclude that the BIA did not err in denying the first motion to reopen as untimely.⁴

II. The BIA Erred in Not Applying Equitable Tolling to Zhao's Second Motion To Reopen

Unlike Zhao's first motion to reopen, which did not attempt to justify its lateness, Zhao's second motion addresses the issue directly. In Zhao's supporting affidavit, he states that after the IJ's original decision was affirmed by the BIA, Zhao hired new counsel "to appeal to the 2nd Circuit Court of Appeals and to file a motion to reopen to the BIA." He states further that counsel "timely filed a petition for review, but did not file the motion to reopen" before the deadline. In addition, he alleges that although his attorney stipulated with the United States Attorney's Office that he would withdraw his petition for review in this Court pending the BIA's adjudication of his motion to reopen, counsel failed to reinstate the petition for review in this Court within thirty days of the BIA's denial of his motion to reopen, as permitted by the stipulation. Adding that he had paid $4,100—the entire agreed fee—to his second attorney, he asked the BIA to "reissue" its decision (in order to allow Zhao to revive his initial petition for review in this Court) and to consider his new motion to reopen on the basis of the alleged ineffective assistance of his first and second attorneys. He included with his motion proof that he had filed complaints against his first and second attorneys and served them with copies of the complaints.

The BIA's decision denying Zhao's second motion to...