Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
2-12-2008
Liu v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2816
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"Liu v. Atty Gen USA" (2008). 2008 Decisions. Paper 1620.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-2816
YUE ZHU LIU,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A95-000-198
(U.S. Immigration Judge: Honorable Rosalind K. Malloy)
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 17, 2008
Before: SCIRICA, Chief Judge, BARRY and ROTH, Circuit Judges.
(Filed: February 12, 2008)
OPINION OF THE COURT
SCIRICA, Chief Judge.
Liu is a native and citizen of the People’s Republic of China. Her husband and
two children are U.S. citizens. Liu initially sought asylum based on religious persecution.
On March 19, 2004, she withdrew her application for asylum and was granted voluntary
departure.
On June 15, 2004, Liu filed a motion to reopen removal proceedings before the
Immigration Judge (IJ) based on her fear of forced sterilization for being in violation of
China’s Family Planning Policy. The IJ denied the motion in a summary order, and the
Board of Immigration Appeals (BIA) summarily dismissed the appeal because Liu’s
attorney failed to file a brief.
On February 15, 2006, Liu filed a motion to reopen based on changed
circumstances and ineffective assistance of counsel in the prior proceeding. The BIA
denied the motion and Liu filed a timely petition for review. We have jurisdiction under
8 U.S.C. § 1252 to review final orders of the BIA.
“A motion to reopen must establish prima facie eligibility for asylum” and requires
an applicant to “produce objective evidence showing a ‘reasonable likelihood’ that he can
establish [that he is entitled to relief].” Guo v. Ashcroft, 386 F.3d 556, 563 (3d Cir.
2004). “[W]e review the denial of a motion to reopen for abuse of discretion,” which
means, the decision will not be disturbed unless it is “arbitrary, irrational, or contrary to
law.” Id. at 562. We will deny Liu’s petition for review.
I.
The BIA denied the motion to reopen as untimely. A motion to reopen a
proceeding must be filed no later than ninety days after the date on which the final
2
administrative decision was rendered. 8 C.F.R. § 1003.2(c)(2). Here, the final decision
was rendered on March 30, 2005, and the motion to reopen was filed in February 2006.
Furthermore, none of the exceptions 1 apply. See 8 C.F.R. § 1003.2(c)(3). As discussed
below, during Liu’s March 19, 2004 hearing, evidence of “changed circumstances” was
known and it could have been presented. Further, changed personal circumstances are
distinct from changed circumstances arising in the country of nationality. See Wang v.
BIA, 437 F.3d 270, 274 (2d Cir. 2006). Accordingly, the BIA did not abuse its discretion
in finding Liu’s motion untimely.
II.
Ineffective assistance of counsel can be a proper ground for reopening a
deportation proceeding. Xu Yong Lu v. Ashcroft, 259 F.3d 127, 131-32 (3d Cir. 2001).
Liu contends that her counsel was ineffective because he did not submit a brief to the
BIA. Under Matter of Lozada, 1988 WL 235454, 19 I. & N. Dec. 637 (BIA 1988), the
applicant must meet three requirements 2 and show prejudice. Zheng v. Gonzales, 422
1
The most relevant exception is 8 C.F.R. § 1003.2(c)(3)(iii): “To apply or reapply for
asylum or withholding of deportation based on changed circumstances arising in the
country of nationality or in the country to which deportation has been ordered, if such
evidence is material and was not available and could not have been discovered or
presented at the previous hearing.”
2
[First,] the alien's motion must be supported by an ‘affidavit of the allegedly
aggrieved [alien] attesting to the relevant facts’; [second,] ‘former counsel must be
informed of the allegations and allowed the opportunity to respond,’ and this
response should be submitted with the motion; and [third,] ‘if it is asserted that
prior counsel's handling of the case involved a violation of ethical or legal
(continued...)
3
F.3d 98, 106 (3d Cir. 2005). The BIA found insufficient evidence to satisfy the second
and third Lozada requirements. Furthermore, the BIA concluded Liu failed to show
prejudice.
The BIA did not abuse its discretion in finding a lack of prejudice. The BIA “shall
not” grant a motion to reopen “unless it appears to the Board that evidence sought to be
offered is material and was not available and could not have been discovered or presented
at the former hearing . . . .” 8 C.F.R. § 1003.2(c)(1). Liu’s affidavits state she was aware
of her second pregnancy on March 14, 2004. Five days later, on March 19, 2004, Liu
withdrew her application for asylum and the IJ granted her application for voluntary
departure. Accordingly, even if Liu’s counsel had submitted a brief, the BIA could not
have granted the motion because the evidence Liu sought to offer was known and
available at the March 19 hearing before the IJ. We need not address the BIA’s
additional reasons leading to the denial (lack of evidence showing Liu notified her
counsel and the disciplinary authority, as required by Lozada).
III.
For the foregoing reasons, we will deny Liu’s petition for review.
2
(...continued)
responsibilities, the motion should reflect whether a complaint has been filed with
appropriate disciplinary authorities regarding such representation, and if not, why
not.’
Zheng v. Gonzales, 422 F.3d 98, 106 (3d Cir. 2005) (quoting Matter of Lozada).
4