                                                  NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEAL
                        FOR THE THIRD CIRCUIT


                                  No. 08-2023


                        FENG ZHI LI; ZHEN HUA CHEN;
                        YU FANG CHEN; ZHU YU CHEN,
                                         Petitioners

                                       v.

               ATTORNEY GENERAL OF THE UNITED STATES,
                                    Respondent


                   On Petition for Review from an Order of the
                         Board of Immigration Appeals
                              (BIA-1: A96-109-436;
                               BIA-1: A96-109-435;
                               BIA-1: A96-109-434;
                              BIA-1: A96-109-433)
                    Immigration Judge: Hon. Grace A. Sease


                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 April 13, 2010

           BEFORE: FISHER, HARDIMAN and COWEN, Circuit Judges

                             (Filed: May 10, 2010 )


                                   OPINION


COWEN, Circuit Judge.
       Feng Zhi Li (“Petitioner”), and her children, Zhen Hua Chen, Yu Fang Chen, and

Zhu Yu Chen (as derivative beneficiaries), petition for review of an order of the Board of

Immigration Appeals (“BIA”) denying a motion to reopen. For the foregoing reasons,

this petition will be denied.

                                              I.

       Petitioner and her children, all natives of Fujian Province and citizens of the

People’s Republic of China, were smuggled out of China in 2002. Petitioner was

eventually placed in removal proceedings, and, in 2004, she requested asylum,

withholding of removal, and relief under the United Nations Convention Against Torture

(“CAT”) on behalf of herself and her children. Among other things, Petitioner claimed

that her husband was forcibly sterilized in China and that she feared she would be forcibly

sterilized for violating China’s one-child policy if she were forced to return to her native

country.

       Following an August 2, 2004 hearing at which she was represented by counsel, the

Immigration Judge (“IJ”) denied the requested relief. The IJ initially found that

removability was established by clear and convincing evidence in the record. Stating that

she had “taken into account such factors as [Petitioner’s] demeanor, [as well as] the

rationality and internal consistency and inherent persuasiveness of her testimony,” the IJ

relied on a number of specific grounds to make an adverse credibility determination

against Petitioner. (AR201.) The IJ further indicated that Petitioner’s impetus for coming



                                              2
to the United States “appears to be more economic than anything else” and agreed with the

government’s attorney “that bringing her three children through to the United States

through a smuggler is an extraordinarily dangerous process.” (AR205.) Finally, she

determined that there was nothing to indicate that Petitioner would be subjected to torture

in her home country.

       Petitioner’s then-counsel appealed to the BIA, but this appeal was dismissed in a

per curiam decision dated January 24, 2005. The BIA found that the testimony and

documents in the record, “[e]ven if insufficient to support a sweeping adverse credibility

finding under applicable Circuit law,” still provided the IJ “with legitimate reason to

question the veracity of the [Petitioner’s] claim.” (AR300 (citation omitted).) The BIA

specifically noted the existence of “discrepancies between the [Petitioner’s] testimony and

supporting documents describing the circumstances surrounding the [Petitioner’s]

husband’s alleged sterilization.” (Id. (citations omitted).) In turn, the materials submitted

on appeal failed to address or provide a convincing explanation for the discrepancies.

Stating that the IJ did not make a clearly erroneous finding, the BIA declined to set aside

the IJ’s determination that Petitioner failed to satisfy the respective burdens of proof

applicable to claims for asylum and withholding of removal. The BIA further held that

Petitioner failed to identify any reversible error in the IJ’s conclusion that she failed to

meet the burden for CAT relief. Finally, the BIA stated that Petitioner’s claim that the IJ

abused her discretion by denying a continuance motion was without merit insofar as the IJ



                                               3
herself conducted “a full and fair hearing,” the Petitioner “has not articulated or identified

prejudice stemming from the [IJ’s] denial” or otherwise shown that the “outcome of her

case would have been different had the motion been granted,” and the record on the whole

supported the IJ’s resolution. (Id. (citation omitted))

       No petition for review was filed with this Court with respect to the BIA’s January

24, 2005 decision. On June 7, 2006, Petitioner did file a counseled motion to reconsider

with the BIA. In a per curiam decision dated August 21, 2006, the BIA dismissed this

motion. It found the motion to be untimely, adding that there were no exceptional

circumstances warranting sua sponte reconsideration on its part. According to the BIA,

the motion “has been filed on the [Petitioner’s] behalf by the same attorney who

represented [Petitioner] on appeal,” this attorney was served with a copy of the decision

dismissing the administrative appeal on January 24, 2005, and he has nevertheless “offered

no explanation for why he waited well over a year to assert error in our decision.” (AR284

(footnote omitted)).) The BIA nevertheless went on to consider the IJ’s credibility

determination again, stating that: “Under this [clearly erroneous] standard, which we are

bound by the regulation to apply, although there may be isolated aspects of the

Immigration Judge’s adverse credibility finding that we may not have relied upon if we

were the fact-finding authority, we may not reverse it unless we are left with the definite

and firm conviction that the ultimate conclusion is wrong.” (AR284 n.1.) Petitioner

obtained new counsel and filed a petition for review of the BIA’s April 21, 2006 decision



                                               4
on the grounds that her prior counsel was ineffective; this Court dismissed the petition on

October 19, 2007 for lack of jurisdiction as ineffective assistance had not been raised

below. See Li v. Attorney General, C.A. No. 06-4155.

        On January 16, 2008, Petitioner, represented by her new attorney, filed a motion to

reopen with the BIA. She claimed both changed country conditions as well as ineffective

assistance of counsel. The BIA denied the motion to reopen on March 7, 2008. The BIA

explained that Petitioner failed to demonstrate a change in country conditions. It then

concluded that, while complying “with the procedural requirements of Matter of Lozada,

19 I&N Dec. 637 (BIA 1988),” the Petitioner failed to demonstrate that her former

counsel’s performance was deficient or otherwise resulted in prejudice. (AR16.) The BIA

provided the following explanation:

        . . . . We note that the [Petitioner’s] December 24, 2007, affidavit submitted
        with the present motion and filed with her disciplinary complaint attests that
        “the Chinese Birth Control officials had forced me to undergo sterilization
        while I was in China after giving birth to three children.” The affidavit
        makes no reference to her husband, and concludes with the statement that
        the affidavit “has been read back to me in the Mandarin dialect of Chinese
        which I am fluent in.” However, the respondent testified before the
        Immigration Judge that it was her husband who was sterilized rather than
        herself (Tr. 35-36), a fundamentally different factual claim that is also
        referenced elsewhere by counsel in her present motion papers.

(Id.)

        Petitioner filed a counseled petition for review with the Court with respect to this

BIA order denying the motion to reopen. She further moved for a stay of removal, but her

motion was denied on September 18, 2008. Petitioner filed another stay motion, which,

                                               5
construed as a motion for reconsideration of the order denying her motion for stay, was

likewise denied on January 27, 2009.

       On April 4, 2008, Petitioner, through counsel, moved in the BIA for reconsideration

of the agency’s reopening decision. The BIA denied this motion on May 2, 2008. It noted

that Petitioner claimed in her Lozada affidavit that her former attorney did not pursue

judicial review of the initial January 24, 2005 decision dismissing her administrative

appeal because her relatives did not pay for his services. However, “[t]he affidavit also

reflects that after the dismissal of the appeal, the lead respondent did not consult with the

attorney for more than 4 months following our decision.” (AR3 (citation omitted).) The

BIA stated that Petitioner failed to provide any evidence that, after the January 24, 2005

decision, either she or her relatives consulted with, entered into an agreement with, or had

any contact with this attorney before the expiration of the filing deadlines for a

reconsideration motion or a review petition. The BIA ultimately stood by its prior finding

of a failure to demonstrate prejudice, adding that the “explanation for a factual error in the

lead respondent’s affidavit pertaining to whether the lead respondent or her husband was

sterilized in China would not alter our decision.” (Id.) Petitioner never filed a petition for

review with respect to this May 2, 2008 reconsideration ruling by the BIA.

                                              II.

       Because Petitioner filed the requisite petition in a timely fashion, we have

jurisdiction to review the BIA’s March 7, 2008 decision denying her motion to reopen.



                                               6
See, e.g., 8 U.S.C. § 1252. We, however, lack jurisdiction to review the BIA’s other

decisions, respectively dated May 2, 2008, and January 24, 2005, because Petitioner failed

to file a timely petition of review as to such rulings. See, e.g., id.; Stone v. INS, 514 U.S.

386, 405-06 (1995). We likewise previously dismissed on jurisdictional grounds a petition

to review the BIA’s August 21, 2006 decision.

       This Court has indicated that “[a] claim of ineffective assistance of counsel in

removal proceedings is cognizable under the Fifth Amendment–i.e., as a violation of that

amendment’s guarantee of due process.” Fadiga v. Attorney General, 488 F.3d 142, 155

(3d Cir. 2007) (citations omitted). An alien asserting a denial of due process “must show

(1) that he was ‘prevented from reasonably presenting his case’ and (2) that ‘substantial

prejudice’ resulted.” Id. (quoting Khan v. Attorney General, 448 F.3d 226, 236 (3d Cir.

2006)). In general, the BIA’s denial of a motion to reopen is reviewed for an abuse of

discretion. See, e.g., id. at 153. But “we review de novo the Board’s determination of an

underlying procedural due process claim.” 1 Id. (citations omitted).

                                              III.

       Petitioner argues at some length that the BIA committed reversible error by failing




  1
     The government argues that Petitioner possessed no rights to effective counsel in this
civil immigration context and that her whole ineffectiveness theory accordingly must be
rejected as a matter of law. Because we find that the BIA properly rejected this
ineffectiveness theory on the substantive grounds that Petitioner failed to establish either
deficient performance or prejudice, we need not (and do not) consider the government’s
broader argument at this time.

                                               7
to grant her motion to reopen pursuant to the theory of ineffective assistance of counsel.

In particular, she claims that her previous attorney provided ineffective assistance before

the IJ as well as before the BIA in the initial appellate proceeding challenging the IJ’s

ruling against her. She further asserts that “prior counsel failed in his responsibility to

communicate with Petitioners while they were in detention, subsequent to the dismissal of

the original BIA appeal.” (Petitioner’s Brief at 23 (emphasis omitted).) Petitioner even

argues that the manner in which the BIA dealt with (or did not deal with) her various

claims violated her right to due process under the Fifth Amendment. We conclude that the

underlying motion to reopen was properly denied.2

       We begin with the question of whether Petitioner’s lawyer provided ineffective

assistance after the BIA’s January 24, 2005 dismissal of her appeal from the IJ’s initial

decision denying asylum and related relief. In its subsequent May 2, 2008 decision, the

BIA expressly addressed and rejected this claim. Petitioner, in turn, takes issue with the

agency’s reasoning, stating, inter alia, that it placed “an unfair burden on Petitioners, who

were uneducated, indigent, illiterate, and spoke no English, to contact their attorney, while

they were in detention.” (Id. at 23 (emphasis omitted).) Nevertheless, as previously noted,

we lack jurisdiction to review the May 2, 2008 decision because Petitioner failed to file a




  2
     Petitioner also unsuccessfully sought reopening on the basis of changed country
conditions. She, however, has waived any “changed country conditions” argument by
failing to raise this theory of relief in her brief. See, e.g., Nagle v. Alspach, 8 F.3d 141,
143 (3d Cir. 1993).

                                               8
petition for review with respect to this subsequent order. In any case, even if this Court

has jurisdiction (which it does not), we would still conclude that the BIA did not commit

reversible error here due, among other things, to the lack of any evidence indicating that

either Petitioner or her relatives (who were not otherwise detained and had retained and

agreed to pay the attorney in the first place) had any contact whatsoever with the attorney

in the time period between the BIA’s dismissal of the administrative appeal and the

expiration of the deadlines for filing either a motion for reconsideration with the BIA or a

petition for review with this Court.

       We also agree with Petitioner that the BIA’s treatment of ineffectiveness in its

March 7, 2008 decision was less than thorough. When examining a claim of ineffective

assistance of counsel, the BIA “must at least show that it has reviewed the record and

grasped the movant’s claims.” Filja v. Gonzales, 447 F.3d 241, 256 (3d Cir. 2006) (citing

Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir. 2002)). In Filja, the BIA failed to meet its

procedural review obligations by rejecting the petitioner’s ineffective assistance argument

in a “formulaic statement that ‘we have carefully reviewed the record,’” followed by one

paragraph in which its only substantive finding was that the petitioner “failed to

demonstrate that his former counsel’s performance was so inadequate that it prejudiced the

outcome of the proceedings.” Id. Because the BIA’s opinion contained no statements

indicating it had in fact carefully reviewed the record, or grasped Filja’s claims, it was

inadequate to survive appellate review. Id; see also Kayembe v. Ashcroft, 334 F.3d 231,



                                              9
238 (3d Cir. 2003) (“When deficiencies in the BIA’s decision make it impossible for us to

meaningfully review its decision, we must vacate that decision and remand so that the BIA

can further explain its reasoning.” (citation omitted)).

       In its March 7, 2008 decision, the BIA similarly provided a curt, one-paragraph

analysis of Petitioner’s ineffective assistance claims in this case. The BIA stated “the

[Petitioner] ha[s] not adequately demonstrated that [her] former counsel’s performance

was deficient or that [she] suffered any prejudice.” (AR16.) The BIA’s conclusion that

Petitioner failed to demonstrate any deficiency in her prior counsel’s performance is a

conclusory “formulaic statement” without further support demonstrating a review of

Petitioner’s arguments or the record. If this were the sole basis for the BIA’s denial of the

ineffective assistance claims, it would be inadequate under Filja and would necessitate

remand. But this is not the only basis for the decision. The BIA also concluded that

Petitioner failed to show prejudice. As support for this conclusion, the BIA noted the

conflicting testimony in Petitioner’s affidavit in support of her motion to reopen as further

reinforcement of the IJ’s adverse credibility determination. Specifically, in her affidavit,

Petitioner averred that she had been forcibly sterilized while in China, which contradicted

her prior statements that it was her husband who had been forcibly sterilized and that she

herself feared forcible sterilization if she were returned to China. Because this

inconsistency goes to the heart of Li’s claim, the BIA did not err when it held that Li failed

to show prejudice.



                                              10
                                    IV.

We accordingly will deny the petition for review.




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