Xin Qiang Liu v. Lynch

• Decision Date: 11 September 2015
• Docket Number: No. 14–1159.,14–1159.
• Citation: 802 F.3d 69
• Parties: XIN QIANG LIU, Petitioner, v. Loretta E. LYNCH,Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — First Circuit

802 F.3d 69

XIN QIANG LIU, Petitioner

v.Loretta E. LYNCH^* Attorney General of the United States, Respondent.

No. 14–1159.

United States Court of Appeals, First Circuit.

Sept. 11, 2015.

Joshua Bardavid and Bardavid Law, on brief for petitioner.

Holly M. Smith, Senior Litigation Counsel, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Stuart F. Delery, Assistant Attorney General, Civil Division, and Eric W. Marsteller, Senior Litigation Counsel, Office of Immigration Litigation, on brief for respondent.

Before TORRUELLA, LIPEZ, and BARRON, Circuit Judges.

Opinion

TORRUELLA, Circuit Judge.

Petitioner Xin Qiang Liu (“Liu”), a native and citizen of China, seeks judicial review of the Board of Immigration Appeals' (“BIA”) order dismissing his appeal from an Immigration Judge's (“IJ”) denial of his motion to rescind an in absentia removal order and motion to reopen removal proceedings. After careful consideration, we must deny Liu's petition.

I. Background

Liu entered the United States without inspection at St. Thomas, United States Virgin Islands, on or about March 18, 1998. On that same date, the Immigration and Naturalization Service (“INS”) served Liu with a notice to appear, charging him with removability as an alien present in the United States without having been admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i).¹ INS advised Liu of his rights in Mandarin, and Liu claimed to understand them.

While in custody, Liu retained former attorney Robert Porges (“Porges”) to represent him in the removal proceedings.² In a motion for bond determination, Porges indicated that Liu intended to seek political asylum in the United States, and that following his release on bond, Liu would reside with a cousin in Brooklyn, New York. The immigration court scheduled a hearing for June 23, 1998, and served Porges with notice of the hearing.

On June 23, 1998, attorney Víctor Ocampo (“Ocampo”) from Porges's law firm appeared telephonically on Liu's behalf from his office in New York. Liu, however, failed to appear at the hearing. Ocampo explained that Liu was absent because he was in Texas helping his uncle with an emergency. Unpersuaded by Ocampo's excuse for Liu's absence, the IJ ordered Liu removed in absentia. Liu avers that Porges never informed him of his hearing date, and upon contacting Porges's law firm, he was told his hearing date had already passed. After learning of the removal order, Liu sought assistance from a legal services agency in Manhattan, New York, which prepared a motion to reopen for him.³ According to Liu, he did not understand English, and simply signed the documents the agency had prepared for him. As a result, Liu's motion was filed as a pro se motion to reopen and to change venue on August 7, 1998. Contrary to the excuse provided by Ocampo, Liu's motion included a doctor's note dated June 22, 1998 (the day before his removal hearing), indicating that he had been seen by a doctor on that date for lower back pain and sciatica and that the doctor recommended bed rest as treatment. On August 25, 1998, the IJ denied Liu's motion to reopen. Liu did not appeal the IJ's decision to the BIA. Following the IJ's denial of his motion to reopen, Liu remained in the United States without authorization.

On January 13, 2012, almost fourteen years after he was ordered removed, Liu filed a motion to rescind the in absentia removal order and a motion to reopen his removal proceedings to apply for asylum and related relief. In his motion, Liu sought equitable tolling of the 180–day filing deadline to rescind a removal order on the basis of ineffective assistance of counsel and lack of notice, alleging that Porges's misconduct had caused him to miss his removal hearing. Liu also sought to reopen his removal proceedings to apply for asylum and related relief due to his fear of religious persecution. According to Liu, since February 2011 he has attended weekly services at the New Life Chinese Alliance Church in Flushing, New York. Liu claims that he became deeply religious, regularly participated in bible study and church choir, and was officially baptized on April 23, 2011. Liu asserts that after reading news articles and media reports documenting China's persecution of Christians, he developed a fear that he would not be able to freely worship if he returned to China and would be forced to attend private illegal gatherings, where members are regularly targeted for arrest and detention. Liu averred that since the issuance of his in absentia removal order, conditions for Christians in China had materially worsened, warranting asylum on the basis of changed country conditions.

In a written decision issued on March 12, 2012, the IJ denied Liu's motion to rescind the in absentia removal order and motion to reopen removal proceedings as untimely and numerically barred. The IJ explained that Liu did not qualify for the changed country conditions exception to the numerical and temporal limitations on motions to reopen because his motion was based solely on changed personal circumstances as a result of his conversion to Christianity. Specifically, the IJ found that the evidence Liu submitted, which itself did not show that conditions had worsened for Christians in China, was not material because Liu only converted to Christianity in 2011, and was not a Christian in 1998. Therefore, the IJ determined that changed personal circumstances could not serve as the basis for a motion to reopen on the basis of changed country conditions. The IJ also determined that Liu failed to provide any reason to warrant equitable tolling of the 180–day filing deadline for a motion to rescind an in absentia removal order given that Liu had not indicated any steps he took in the interim fourteen years to remedy his immigration status.⁴ Liu appealed the IJ's decision to the BIA.

The BIA dismissed Liu's appeal on September 11, 2013. In addition to adopting and affirming the IJ's decision to deny Liu's motions, the BIA added that waiting fourteen years to raise his claim of ineffective assistance of counsel did not amount to due diligence. Furthermore, the BIA noted that Liu's conversion to Christianity was a change in personal circumstances and not a change in country conditions, and also that China's restrictions on religious practices were a continuation of previous policies, rather than an increase in religious persecution. Finally, the BIA concluded that Liu had failed to show that authorities in China either knew of or would likely become aware of his religious conversion if he returned to China. This timely petition for review followed.

II. Discussion

Liu alleges that the IJ abused her discretion in determining that Liu failed to establish changed country conditions and construing his motion to reopen as based only on changed personal circumstances. Though Liu concedes that his personal circumstances did change as a result of his conversion to Christianity, he avers that his motion is explicitly based on the worsening of conditions for Christians in China. Furthermore, Liu claims that the IJ failed to consider the record as a whole, and ignored reliable evidence showing an increase in attacks on Christians in China. In addition, Liu asserts that the BIA ignored his claim that he would continue to engage in unauthorized religious activity if he returned to China by joining an underground church and openly preaching the gospel, and therefore, Liu contends that the BIA erred in determining that his religious activity would not be targeted in China. Liu further argues that the evidence of Porges's disbarment and conviction was circumstantial corroboration for his claim that his failure to appear and initial motion to reopen were not his own fault. Liu also avers that he has satisfied all of the requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988) for making an ineffective assistance of counsel claim. Liu suggests that Porges's failure to inform him of his hearing date constituted ineffective assistance of counsel sufficient to amount to an exceptional circumstance that would entitle him to reopen his proceedings. Accordingly, Liu contends that the IJ and BIA's failure to find that ineffective assistance of counsel caused him to miss his hearing amounted to reversible error. We are thus faced with two issues: (1) the merits of Liu's motion to rescind the in absentia removal order on the basis of extraordinary circumstances in the form of ineffective assistance of counsel and (2) the disposition of Liu's motion to reopen on the basis of changed country conditions.

This Court has jurisdiction over the BIA's September 2013 decision to dismiss Liu's appeal of the IJ's decision pursuant to the INA, which gives the courts of appeals exclusive jurisdiction to review final orders of removal. See 8 U.S.C. § 1252(a)(5). Furthermore, “[f]or this court to have jurisdiction to review a final order of removal, the alien must have ‘exhausted all administrative remedies available to the alien as of right.’ ” Meng Hua Wan v. Holder, 776 F.3d 52, 56 (1st Cir.2015) (citing 8 U.S.C. § 1252(d)(1) ). “The exhaustion requirement is satisfied where ... the agency chooses to address the merits of a particular issue, regardless of whether the alien raised that issue.” Id. We also have “jurisdiction to review the BIA's decision to deny equitable tolling of the time and number limitations” on motions to reopen. Neves v. Holder, 613 F.3d 30, 33 (1st Cir.2010). Therefore, Liu's petition for review is properly before us.

Motions to reopen are generally “disfavored as contrary to the compelling public interests in finality and the expeditious processing of proceedings.”Xue Su Wang v. Holder, 750 F.3d 87, 89 (1st Cir.2014) (quoting Nascimento v. Mukasey, 549 F.3d 12, 15 (1st Cir.2008) ).

We review the BIA's decisions under a deferential abuse of discretion standard. Kucana v. Holder, 558 U.S. 233, 242, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010) (cit...