                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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




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                                                              NOT PRECEDENTIAL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.




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