Bi Feng Liu v. Holder

• Decision Date: 24 March 2009
• Docket Number: No. 07-4359.,07-4359.
• Citation: 560 F.3d 485
• Parties: BI FENG LIU, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

560 F.3d 485

BI FENG LIU, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 07-4359.

United States Court of Appeals, Sixth Circuit.

Argued: January 13, 2008.

Decided and Filed: March 24, 2009.

ARGUED:

Oleh R. Tustaniwsky, Hualian Law Offices, New York, New York, for Petitioner. Nicole N. Murley, United States Department of Justice, Washington, D.C., for Respondent.

ON BRIEF:

Oleh R. Tustaniwsky, Hualian Law Offices, New York, New York, for Petitioner. Nehal H. Kamani, United States Department of Justice, Washington, D.C., for Respondent.

Before SUHRHEINRICH, GILMAN, and WHITE, Circuit Judges.

OPINION

SUHRHEINRICH, Circuit Judge.

Bi Feng Liu, a native and citizen of China, was ordered removed by an Immigration Judge (IJ). He subsequently filed a motion to reopen proceedings based upon changed country conditions and changed personal conditions. The IJ denied Liu's motion, and the Board of Immigration Appeals (BIA) affirmed the IJ's denial of the motion without a hearing. Liu petitions for review of the BIA's decision, arguing that the BIA (1) abused its discretion in finding that he failed to show changed country conditions, (2) erred in determining that Liu was ineligible to file a successive asylum application based upon changed personal circumstances, and (3) erred in failing to consider whether Liu qualified for relief under the Convention Against Torture. Because the BIA acted within its discretion, we DENY Liu's petition for review.

I. Background

Liu was born on July 21, 1977, in the Fujian Province of China. Liu claims that his fiancée became pregnant in 2001, but they were unable to register their marriage because she had not reached the legal marital age. Chinese officials began "pursuing" Liu because of his violation of birth-control policy, and he departed China and gained admission into the United States without valid documentation on October 29, 2001.

On March 1, 2004, the Department of Homeland Security lodged a Notice to Appear with the Executive Office of Immigration Review in Miami, Florida, charging Liu as entering the United States without valid entry documents and, thus, subject to removal under § 212(a)(7)(A)(i)(I) of the Immigration and Naturalization Act (INA). Three weeks later, Liu successfully moved to change venue to New York City. Between May 20, 2004, and March 3, 2005, Liu appeared before an IJ in New York six times requesting more time to find an attorney or to file applications for relief. Liu also requested another change of venue, this time to Memphis. On March 3, 2005, the IJ in New York entered an order changing venue to Memphis.

A master calendar hearing was eventually scheduled for June 29, 2005, in Memphis, Tennessee.¹ Shortly before the hearing, on June 10, 2005, Liu moved yet again to change venue from Memphis back to New York. The IJ in Memphis denied that motion, reasoning in part that Liu appeared to be forum shopping. Liu failed to appear at his June 29 hearing, and the IJ issued an in absentia order of removal against Liu.² In the order, the IJ noted that Liu had admitted the factual allegations contained in his Notice to Appear and had conceded his removability in one of his earlier motions to change venue. Liu never challenged the in absentia order and did not move to reopen proceedings at that time.

Instead, in August 2006—over one year after he was ordered removed from the United States—Liu joined the China Democratic Party (CDP) in New York and began participating in CDP meetings and protest rallies.³ On December 6, 2006, Liu filed a motion to reopen his removal proceedings before the immigration court. To get around the 90-day filing requirement for motions to reopen, Liu asserted both that his personal conditions had changed based upon his activities with the CDP and that conditions had changed in China as a result of that government's increased control over the Internet and traditional media. See 8 U.S.C. §§ 1229a(c)(7)(C)(i), (ii) (providing that motions to reopen must be filed within 90 days of a final order of removal but that no deadline applies if, inter alia, the motion to reopen is based upon changed conditions in the country to which removal has been ordered). In support of his assertion that his personal circumstances had changed, Liu appended to his motion to reopen his own sworn affidavit, evidence of his involvement with the CDP in New York, and two articles that he allegedly published on the CDP website. To support his argument that conditions had changed in China, Liu cited the recent arrests of Chinese dissidents who published political opinion on the Internet, articles chronicling the treatment of Chinese dissidents, a translation of a new Chinese law titled "Measures for Administering the Release of News and Information in China by Foreign News Agencies," and two pages from the U.S. Department of State's "2005 Country Reports on Human Rights Practices" in China, which, inter alia, explained that CDP members in China had been imprisoned.

Liu failed to append an application for asylum or any other form of relief to his motion to reopen, however. See 8 C.F.R. § 1003.23(b)(3) (explaining that a motion to reopen must be accompanied by the appropriate application for relief and all supporting documentation).

On December 18, 2006, the IJ denied the motion to reopen, finding that Liu's evidence failed to establish changed country conditions that would excuse his untimely filing of the motion to reopen. The IJ also cited three other reasons for denying Liu's motion: (1) Liu did not satisfy the procedural requirements of 8 C.F.R. § 1003.23(b)(4)(ii) because he failed to demonstrate that evidence of purported changed country conditions was unavailable at the June 29, 2005 hearing, which Liu did not attend; (2) Liu's motion was another attempt to "manipulate the system" and did not, in the IJ's discretion, warrant reopening; and (3) Liu's failure to attach an application for asylum to his motion constituted a failure to demonstrate prima facie eligibility for asylum.

Liu appealed the IJ's denial of his motion to reopen to the BIA. Liu also sought a remand order from the BIA so that he could submit the asylum application that he had omitted from his earlier motion to reopen.

On October 12, 2007, the BIA dismissed Liu's appeal. The BIA first addressed Liu's evidence of his participation in CDP activities and concluded that such evidence demonstrated a change in personal circumstances but did not qualify as a change in country conditions sufficient to warrant reopening his proceedings. Second, the BIA held that, pursuant to 8 C.F.R. § 1003.23(b)(3), Liu's failure to submit an asylum application with his motion to reopen precluded reopening his removal proceedings.

Third, the BIA held that Liu's remaining evidence did not establish changed country conditions. Though the BIA did not specifically address the country report and its findings of arrests of CDP members, the BIA found "no evidence that anyone in China is aware of [Liu's] alleged membership in, and activities in support of, the CDP." The BIA searched—unsuccessfully—for Liu's articles on the Internet. Even if the articles existed, the BIA found "no evidence that anyone in China is aware of these articles [or has] any inclination and ability to harm the respondent in any way because of them." The BIA also examined the new Chinese law Liu had cited and concluded that it only applied "to the release of news and information `in China by foreign news agencies.'" Because Liu's articles were not published in China by Liu or a foreign news agency, the BIA determined that Liu's actions did not fall within the ambit of such law. Additionally, the BIA pointed out that Liu's evidence of the arrest of Chinese dissidents did not suggest that those dissidents were prosecuted pursuant to the new law. Thus, the BIA found that Liu's evidence failed to demonstrate a changed country condition or a well-founded fear of persecution if he returned to China.

The BIA also denied Liu's motion for remand. The BIA reasoned that because the requirements for a motion to remand are essentially the same as a motion to reopen, the motion to remand was number barred under 8 C.F.R. § 1003.2(c)(2), which allows only one motion to reopen before the IJ or the BIA.⁴ The BIA also found that the motion to remand did not seek to introduce "previously unavailable" evidence but rather averred that Liu's counsel had erred by failing to include the application with the prior motion. Accordingly, the BIA noted that the instant motion suggested ineffectiveness of counsel and required compliance with the procedures set forth in Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A.1988), but that Liu failed to comply with those requirements. In any event, because Liu failed to demonstrate changed country conditions warranting reopening of his removal proceedings, the BIA noted that Liu could not show the requisite prejudice to support a claim of alleged ineffectiveness of counsel.

II. Analysis

A. Jurisdiction

This Court has jurisdiction to review final orders of removal that have been timely appealed. 8 U.S.C. § 1252(a)(1). An order of removal becomes final upon the dismissal of an appeal by the BIA. 8 C.F.R. § 1241.1(a); Prekaj v. I.N.S., 384 F.3d 265, 268 (6th Cir.2004). By statute, an alien seeking review of a final order of the BIA must file a petition for review not later than 30 days after the date of the final order of removal. 8 U.S.C. § 1252(b)(1). The BIA issued its decision on October 12, 2007, and Liu timely filed his petition to this Court on November 9, 2007.

B. Standard of Review

The BIA has "broad discretion" to grant or deny a motion to reopen. I.N.S. v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). Therefore, we review the BIA's denial of a motion to reopen for abuse of discretion. Id.; Harchenko v. I.N.S., 379 F.3d 405, 409 (6th Cir.2004). The Supreme Court expressed why ...