Xue Yong Chen v. Holder

12-4735 (L)
Chen v. Holder
BIA
A072 656 303
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 9th day of May, two thousand fourteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 XUE YONG CHEN,
14 Petitioner,
15
16 v. 12-4735 (L),
17 13-1517 (Con)
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Alan Lee, New York, N.Y.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Ernesto H. Molina, Jr.,
28 Assistant Director; Jeffery R.
29 Leist, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
 1 UPON DUE CONSIDERATION of these petitions for review of

2 Board of Immigration Appeals (“BIA”) decisions, it is hereby

3 ORDERED, ADJUDGED, AND DECREED that the petitions for review

4 are DENIED.

5 Petitioner Xue Yong Chen, a native and citizen of

6 China, seeks review of the November 13, 2012, and March 22,

7 2013, orders of the BIA denying his motions to reopen and

8 reconsider. In re Xue Yong Chen, No. A072 565 303 (B.I.A.

9 Mar. 22, 2013); id. (B.I.A. Nov. 13, 2012). We assume the

10 parties’ familiarity with the underlying facts and

11 procedural history in this case. Because Chen does not

12 challenge the denial of his motion to reconsider, we have

13 considered only the agency’s denial of his motions to

14 reopen, which we review for abuse of discretion. See Ali v.

15 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).

16 An alien may file one motion to reopen, generally no

17 later than 90 days after the date on which the final

18 administrative decision was rendered in the proceedings

19 sought to be reopened. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8

20 C.F.R. § 1003.2(c)(2). Chen’s 2012 and 2013 motions were

21 untimely and number barred because he filed six motions to

22 reopen since being ordered removed in 2005. See 8 U.S.C.

23 § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). However,

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 1 the agency may equitably toll the time limitation on a

2 motion to reopen if an alien demonstrates ineffective

3 assistance of counsel and that he exercised due diligence in

4 pursuing that claim during “both the period of time before

5 the ineffective assistance of counsel was or should have

6 been discovered and the period from that point until the

7 motion to reopen is filed.” Rashid v. Mukasey, 533 F.3d

8 127, 131 (2d Cir. 2008).

9 Chen argues that he established ineffective assistance

10 of counsel in his 2013 motion due to his former counsel’s

11 failure to warn him of the consequences of filing a

12 frivolous asylum application. However, the BIA reasonably

13 found that he did not exercise due diligence because he

14 should have discovered his attorney’s failure in 2000, when

15 the IJ found that he had filed a frivolous application, or

16 at least in the course of filing one of his six motions to

17 reopen. See Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d

18 Cir. 2007) (“A petitioner who waits two years or longer to

19 take steps to reopen a proceedings ha[d] failed to

20 demonstrate due diligence”). The BIA therefore did not

21 abuse its discretion in declining to equitably toll the time

22 limitation and in denying Chen’s 2013 motion to reopen as

23 untimely and number barred. See Rashid, 533 F.3d at 131.

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 1 Chen also contends that the BIA declined to reopen sua

2 sponte based on its erroneous determination that the IJ’s

3 frivolousness finding validly rendered him ineligible for

4 adjustment of status. The BIA may, as a matter of

5 discretion, reopen proceedings for exceptional

6 circumstances, but we may not review such discretionary

7 decisions unless the petitioner raises a colorable

8 constitutional claim or question of law. See 8 U.S.C.

9 § 1252(a)(2)(B)(i), (D). Although Chen raises questions of

10 law, arguing that the BIA misperceived his eligibility for

11 relief, his arguments lack merit. See Mahmood v. Holder,

12 570 F.3d 466, 469-71 (2d Cir. 2009).

13 As the BIA concluded, the IJ’s finding that he filed a

14 frivolous asylum application barred him from adjustment of

15 status. 8 U.S.C. § 1158(d)(4)(6). Chen became subject to

16 the frivolous filing bar when he reapplied for asylum in

17 1999. See 8 C.F.R. § 1208.20 (applying frivolous filing

18 consequences to applications filed on or after April 1,

19 1997). Contrary to Chen’s arguments, the 1999 application

20 was valid, despite his failure to sign the application a

21 second time before the IJ, and provided him sufficient

22 notice of the consequences of filing a frivolous application

23 as required by regulation. See 8 U.S.C. § 1158(d)(4)(A)

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 1 (providing that “[a]t the time of filing an application for

2 asylum, the Attorney General shall . . . advise the alien .

3 . . of the consequences . . . of knowingly filing a

4 frivolous application for asylum . . . .”); see also Pavlov

5 v. Holder, 697 F.3d 616, 618 (7th Cir. 2012) (holding that

6 the asylum application warning satisfies § 1158(d)(4)(A));

7 Cheema v. Holder, 693 F.3d 1045, 1049 (9th Cir. 2012)

8 (same); Ribas v. Mukasey, 545 F.3d 922, 929-30 (10th Cir.

9 2008) (same). Accordingly, the BIA did not err in declining

10 to sua sponte reopen. Cf. Mahmood, 570 F.3d at 469-71.

11 For the foregoing reasons, the petitions for review are

12 DENIED. As we have completed our review, any stay of

13 removal that the Court previously granted in this petition

14 is VACATED, and any pending motion for a stay of removal in

15 this petition is DISMISSED as moot. Any pending request for

16 oral argument in this petition is DENIED in accordance with

17 Federal Rule of Appellate Procedure 34(a)(2), and Second

18 Circuit Local Rule 34.1(b).

19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
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