Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
2-3-2006
Li v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1567
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Li v. Atty Gen USA" (2006). 2006 Decisions. Paper 1642.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1642
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 05-1567
XIU YING LI,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES,
Respondent
On Petition for Review of a Final Order
of the Board of Immigration Appeals
No. A77-297-720
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
February 3, 2006
Before: McKEE, SMITH and VAN ANTWERPEN, Circuit Judges
(Filed: February 3, 2006)
OPINION OF THE COURT
SMITH, Circuit Judge.
Xiu Ling Li, a native of the People’s Republic of China, arrived in this country in
February of 2000. Six months later, in August, she filed a timely application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”),
alleging persecution on the basis of her political opinion. Li averred that she was forced
to abort a child in 1991 and that an IUD was forcibly implanted after the birth of a
daughter in July 1993. On November 27, 2000, the Immigration Judge (“IJ”) found Li
not credible and denied her application for asylum, withholding of removal, and relief
under the CAT.
Li filed a timely appeal with the Board of Immigration Appeals (“BIA”). In
September of 2002, Li’s counsel, Donald Paragon, contacted the BIA about Li’s pending
appeal and advised that she had given birth to two children while in the United States.
Attorney Paragon asked that this change be considered in ruling on her claim of political
persecution because of China’s coercive family policy. On November 14, 2002, the BIA
affirmed the decision, citing a BIA decision and explaining parenthetically that an
affirmance of an IJ’s decision is a statement that the BIA’s conclusion coincides with the
IJ’s decision. The BIA also concurred with the IJ’s conclusion that Li had failed to prove
her claims. It explained that Li had not submitted sufficient corroborating evidence and it
agreed with the adverse credibility finding because there were inconsistencies that were
central to her claim.
Li failed to obtain notice of the decision, however, because of mailing errors by the
BIA. In May of 2004, some twenty months after Attorney Paragon’s letter to the BIA
inquiring about the status of her appeal, and almost eighteen months after the BIA issued
its decision in November of 2002, Li sought assistance from Attorney Gary Yerman to
determine the status of her appeal to the BIA. She learned that her appeal had been
2
dismissed in November of 2002. On June 7, 2004, Attorney Yerman filed a motion to
reopen alleging a change in the country conditions, namely a new, more restrictive birth
control law. Counsel argued that under this new law, Li, who now had three children
born in the United States, feared being sterilized if returned to China. In addition, counsel
alleged that a failure to reopen would deny Li due process.
The BIA denied the motion to reopen on August 30, 2004. The BIA explained that
the motion was untimely. The BIA recognized that the motion would be exempt from the
90 day filing requirement if it were based on “changed circumstances” under 8 C.F.R. §
1003.2(c)(3)(ii). The changed circumstances exemption, however, lacked merit as the
birth of her children in the United States did not constitute changed circumstances arising
in her native country. In addition, the BIA acknowledged that counsel averred that he had
just received notice of the BIA’s November 14, 2002 decision. The BIA noted that it had
the power to grant such relief in exceptional situations, and that although it was
“sympathetic to the respondent’s situation, . . . we do not find it merits this relief.” Li did
not file an appeal of this order.
Thereafter, Li retained yet another attorney, Gang Zhou. He filed a motion for
reconsideration on September 27, 2004. The motion related the procedural history of the
case, and asserted that reconsideration was warranted because not only had her first
attorney rendered ineffective assistance, but so had her second attorney. As a result, Li
alleged that her “due process right to a full and fair hearing of her asylum claim” had
been violated.
3
The BIA denied the motion for reconsideration on January 31, 2005. It capsulized
Li’s motion and declared that “[e]ven if we would therefore reconsider our August 30,
2004, decision finding the motion to reopen to be untimely, we would decline to reopen
the proceedings in this case.” The BIA explained that the IJ determined that Li’s
“testimony concerning her coercive family planning claim was not credible” and that
“[o]nly credible testimony may sustain [Li’s] burden of proof.” It further acknowledged
that her “current assertions do not account for her non-credible testimony.”
Li petitioned for review of this order, asserting several arguments on appeal.1 Li
contends that the BIA’s error deprived her of due process because it failed to timely put
her on notice of the BIA’s November 2002 decision dismissing her appeal. She also
asserts that she was deprived of her right to due process because the BIA ignored her
claim of ineffective assistance of both of her prior attorneys and the fact that she
complied with the requirements of Matter of Lozada, 19 I. & N. Dec. 637 (1988). In
addition, Li contends that the BIA abused its discretion by imposing an ad hoc
requirement that she account for her non-credible testimony. She further submits that the
BIA’s failure to apprise her of that requirement offended the Due Process Clause.
We review constitutional claims de novo. Ezeagwuna v. Ashcroft, 325 F.3d 396,
405 (3d Cir. 2003). In Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001), we
acknowledged that “aliens facing removal are entitled to due process. ‘The fundamental
1
We exercise appellate jurisdiction pursuant to 8 U.S.C. § 1252.
4
requirement of due process is the opportunity to be heard at a meaningful time and in a
meaningful manner.’” Id. (citations omitted). There is no due process violation,
however, in the absence of prejudice. Wilson v. Ashcroft, 350 F.3d 377, 381 (3d Cir.
2003).
Noticeably absent from Li’s argument is any assertion that she was deprived of her
opportunity to fully and fairly present her case before the IJ, or to appeal in the first
instance to the BIA. Instead, her allegation focuses solely on the conduct of the BIA in
adjudicating her motion to reopen. To its credit, the BIA did not limit its decision to the
procedural timeliness of Li’s motion to reopen. Instead, the BIA considered not only
whether changed circumstances warranted relief, but also the merits of Li’s claim. It
chose not to grant relief, noting that the IJ had determined, and the BIA had agreed, that
her non-credible testimony failed to meet her burden of proof. As a result, the BIA
explained there was no reason to grant the relief she requested. Because the BIA
considered Li’s arguments on the merits, even though it ultimately rejected them, she has
not been prejudiced by the lost opportunity to file a timely motion to reopen. Without
prejudice, Li cannot establish a due process violation. Wilson, 350 F.3d at 381.
Nor is there any merit to Li’s assertion that the BIA ignored her claims of
ineffective assistance of counsel. The second paragraph of the three paragraph order
denying her motion for reconsideration was devoted to this very contention. The BIA
generously assumed that attorney error caused the untimely filing. Nonetheless, it
declared that even if it deemed the motion to reopen to be timely filed, it would not alter
5
its decision on the merits of her claim.
Li also contends that the BIA created an ad hoc requirement that she had to
account for her non-credible testimony before relief could be granted on her motion for
reconsideration or reopening. We disagree. What Li sees as a new requirement is simply
an explanation by the BIA as to why the allegations and argument contained in her
motion for reconsideration were insufficient to justify the relief sought. In the absence of
a new procedural step, Li’s final argument is without merit.
We will deny Li’s petition for review and affirm the order of the BIA.
6