Wang v. Board of Immigration Appeals

• Citation: 508 F.3d 710
• Decision Date: 29 November 2007
• Docket Number: Docket No. 06-5554-ag.
• Parties: Jian Hua WANG, aka Jen Hua Wang, aka Bao Zhu Bai, Petitioner, v. BOARD OF IMMIGRATION APPEALS, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

508 F.3d 710

Jian Hua WANG, aka Jen Hua Wang, aka Bao Zhu Bai, Petitioner, v. BOARD OF IMMIGRATION APPEALS, Respondent.

Docket No. 06-5554-ag.

United States Court of Appeals, Second Circuit.

Argued: November 5, 2007.

Decided: November 29, 2007.

Gary J. Yerman, New York, NY, for Petitioner.

Hillel R. Smith, Trial Attorney, (Peter D. Keisler, Assistant Attorney General; Terri J. Scadron, Assistant Director, on the brief), Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before: CABRANES, KATZMANN, and HALL, Circuit Judges.

PER CURIAM:

The question presented, which is the principal focus of this opinion, is whether petitioner exercised due diligence in filing his motion to reopen based on a claim of ineffective assistance of counsel. Petitioner Jian Hua Wang, a native and citizen of the People's Republic of China, arrived in the United States in October 2000 without valid entry documents. He was placed in so-called "removal proceedings," where he was represented by counsel, Joseph Muto, and applied for asylum,¹ withholding of removal pursuant to 8 U.S.C. § 1231(b)(3),² and relief under the United Nations Convention Against Torture ("CAT").³ His asylum application, prepared by Muto, claimed a fear of persecution in China because of its coercive population control policies. Wang asserted that his wife was forced to abort her second pregnancy by family planning officials. He further claimed that he would be imprisoned or sterilized for opposing the coercive population control policies if he were returned to China based on his intent to "imminently violate the policy . . . as [Wang and his wife] plan to have more" than one child. In August 2001, Wang testified before Immigration Judge Barbara A. Nelson ("IJ") in support of his applications for relief. At the conclusion of the hearing, the IJ denied Wang's claims for asylum and withholding of removal, finding Wang's testimony "not credible or reliable because of the serious and numerous omissions from his written application for asylum without satisfactory explanation." Wang timely filed an appeal to the BIA, which affirmed the IJ's decision without opinion in August 2002. Wang did not file a petition for review of that decision.

In June 2006, nearly four years after the BIA decision, Wang, now represented by new counsel, filed a motion to reopen his case. He argued, inter alia, that the 90-day time limitation for filing motions to reopen⁴ did not apply to his case because "[t]ime limitations for motions to reopen are equitably tolled and thus do not apply where ineffective assistance of counsel constitutes `exceptional circumstances.'" Wang alleged that he received ineffective assistance of counsel from his former attorney, Muto, in pursuing his appeal before the BIA. He argues that Muto was ineffective by (1) failing to "obtain an oral statement" from Wang for the purposes of preparing the asylum application; (2) incorrectly stating a number of facts in that application and the accompanying affidavit; (3) failing to challenge the IJ's findings and failing to correct certain facts in the brief submitted in Wang's behalf to the BIA; and (4) failing to notify Wang that the BIA had dismissed his appeal. To establish that he had exercised due diligence in pursuing this claim, pursuant to the requirements of Matter of Lozada, 19 I & N Dec. 637 (BIA 1988), petition for review denied by, 857 F.2d 10 (1st Cir. 1988), Wang submitted a disciplinary complaint he filed against Muto on January 18 2006 with the Departmental Disciplinary Committee, First Judicial Department, in New York; his affidavit in support of his complaint against Muto; a letter served upon Muto providing notice of the complaint; the official response of the Departmental Disciplinary Committee to Wang's complaint, informing Wang of Muto's disbarment; and a copy of the March 19, 2002 decision of the Supreme Court of New York, Appellate Division, First Department, disbarring Muto.⁵ He also submitted a letter, dated October 29, 2005, documenting his September 29, 2005 request for the record of proceedings in his case pursuant to the Freedom of Information Act ("FOIA").

In his June 2006 submissions to the BIA, Wang also argued that circumstances in China had significantly worsened, and this change in circumstances was a separate basis for an exception to the time limitation for filing a motion to reopen. See 8 C.F.R. § 1003.23(b)(4)(i).⁶ He also urged the BIA to reopen his case sua sponte, in the interest of justice. Among the documents he submitted to establish changed circumstances were: (1) a letter from his wife alleging increased enforcement of the family planning law in her hometown in China; (2) a copy of the September 23, 2002 testimony of Dr. John S. Aird, a retired U.S. Census Bureau demographer and immigration expert, discussing China's new Family Planning Law;⁷ (3) a Consular Information Sheet for China, dated May 29, 2003; (4) an excerpt from the 2004 U.S. Department of State Country Report on Human Rights Practices for China ("Country Report"); and (5) an excerpt from the 2005 Country Report.

In November 2006, the BIA issued a short opinion denying Wang's motion to reopen, finding that he failed to show that he acted with due diligence in pursuing the reopening of his case based on a claim of ineffective assistance of counsel. In doing so, the BIA assumed that the petitioner did not learn of the BIA's August 2002 decision dismissing his appeal until October 29, 2005, when he received his file through a FOIA request from his new counsel but noted that the motion to reopen was not filed until eight months after that date.⁸ The BIA also found that Wang's documentary submissions failed to establish "a material change in circumstances arising in China for purposes of meeting the 8 C.F.R. § 1003.2(c)(3)(ii) exception." Additionally, the BIA found that Wang did not present exceptional circumstances to warrant sua sponte reopening of his case.⁹

Wang timely filed before this Court a petition for review of the BIA's denial of his motion to reopen. He argues that the BIA abused its discretion in denying his motion to reopen because he demonstrated changed country conditions in China that warranted an exception to the 90-day filing deadline for motions to reopen. He further argues that he "suffered ineffective assistance of counsel, and that such circumstances warrant equitable tolling of the time limitations on motions to reopen." In response, the Government argues that the BIA did not abuse its discretion in denying Wang's motion to reopen because it properly determined that Wang failed to show: (1) that he exercised due diligence during the relevant period of time; and (2) that country conditions in China had changed so as to warrant an exception to the ninety-day time limit for filing motions to reopen.

DISCUSSION

We review the BIA's denial of a motion to reopen for abuse of discretion. See, e.g., Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005). An abuse of discretion may be found where the BIA's decision "provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner." Kaur, 413 F.3d at 233-34 (quoting Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 93 (2d Cir.2001)).

Pursuant to 8 C.F.R. § 1003.2(c)(2), a motion to reopen must be filed within 90 days of the entry of the final decision in the underlying proceeding. See note 4, ante at 712 (text of provision). Claims of ineffective assistance of counsel may provide a sufficient basis for equitable tolling of the 90-day period if the movant shows that his due process rights were violated by the conduct of counsel, and that the movant "exercised due diligence in pursuing the case during the period [he] seeks to toll." Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (citation omitted); Cekic v. INS, 435 F.3d 167, 170 (2d Cir.2006) (noting that "no matter how egregiously ineffective counsel's assistance may have been, an alien will not be entitled to equitable tolling unless he can affirmatively demonstrate that he exercised reasonable due diligence during the time period sought to be tolled"). Here, there is no dispute that Wang's June 2006 motion was untimely because the BIA issued its decision affirming the IJ's order of removal in August 2002, nor is there dispute that Wang received a copy of his BIA files no later than October 29, 2005.

We have previously held that a petitioner who waits two years or longer to take steps to reopen a proceeding has failed to demonstrate due diligence. See e.g., Zhao Quan Chen v. Gonzales, 492 F.3d 153, 155 (2d Cir.2007) (over three years); Cekic, 435 F.3d at 171-72 (two years); Iavorski v. INS, 232 F.3d 124, 129-35 (2d Cir.2000) (same); Ali, 448 F.3d at 516 n. 2 (eleven years); but see Jin Bo Zhao v. INS, 452 F.3d 154, 159 (2d Cir.2006) ("We conclude that the five-month period ... is not too long for Zhao to merit equitable tolling."). Other circuits have found that petitioners waiting shorter time periods have failed the due diligence requirement for reopening. See, e.g., Scorteanu v. INS, 339 F.3d 407, 414 (6th Cir.2003) (approximately eleven months); Jobe v. INS, 238 F.3d 96, 97 (1 st Cir.2001) (eight months).

We write to clarify that there is no magic period of time—no per se rule — for equitable tolling premised on ineffective assistance of counsel. Rather, the nature of the analysis in each case is a two-step inquiry that first evaluates reasonableness under the circumstances—namely, whether and when the ineffective assistance "[was], or should have been, discovered by a reasonable person in the situation." Iavorski, 232 F.3d at 134. Then, petitioner bears the burden of proving that he has exercised due diligence in the period between discovering the...