                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-24-2005

Chen v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2287




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                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 04-2287


                                    LI ZHEN CHEN,

                                                 Petitioner

                                            v.

                              ALBERTO R. GONZALES,
                    Attorney General of the United States of America *

                                                 Respondent


                             Petition for Review of an Order
                          of the Board of Immigration Appeals
                                    (No. A78-736-230)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                Date: October 21, 2005

    Before: SCIRICA, Chief Judge, VAN ANTWERPEN and ALDISERT, Circuit Judges

                                (Filed_October 24, 2005)


                              OPINION OF THE COURT




*
 Alberto R. Gonzales is substituted for his predecessor, John Ashcroft, as Attorney
General of the United States pursuant to Fed. R. App. P. 43(c)(2).
ALDISERT, Circuit Judge

       Petitioner Chen, Li Zhen (“Chen”), a native and citizen of the People’s Republic of

China, seeks review of a final order of removal issued by the Board of Immigration

Appeals (“BIA”) on April 14, 2004, which denied her motion to reopen on the ground of

ineffective assistance of counsel. We must decide whether the BIA properly denied

Chen’s motion to reopen her asylum case. We have jurisdiction to review the BIA’s order

pursuant to 8 U.S.C. § 1252. We will deny the petition.

                                             I.

       Because we write only for the parties who are familiar with the facts, the

procedural history and the contentions presented, we will not recite them except as

necessary to the discussion.

                                            II.

       Chen was placed in removal proceedings and applied for asylum on the basis of

persecution in China by birth control officials from 1992 to 1999. She was pregnant with

her fourth child at the time of the hearing before the Immigration Judge (“IJ”). At the

hearing, Chen testified that two of her three children were born in China, and that she had

been persecuted there by family planning officials. The IJ characterized her testimony as

neither “lucid nor plausible,” and accordingly found that Chen had not demonstrated any

evidence of past persecution or any evidence of the possibility of future persecution

should she return to China. The IJ entered an order rejecting Chen’s claims, denied her



                                             2
petition for asylum and ordered her removal from the United States.

       Notwithstanding the IJ’s decision, the issues for determination in this case center

not so much on Chen’s credibility before the IJ, but rather on the procedures for

reopening her asylum case before the BIA.

       Chen appealed the removal order to the BIA, which dismissed her appeal on

August 27, 2003, for failure to file a brief. The attorney who handled Chen’s appeal, Mr.

Cox, promptly filed a motion to reconsider and reopen, accompanied by a brief with

attached exhibits and affidavits. The BIA treated the motion as a motion to reconsider

and on January 2, 2004, denied the motion, stating that Chen “has established no error of

law or fact in our prior decision.”

       Chen did not appeal that order. Instead, through new counsel, she filed a motion

before the BIA to reopen her case, in which she alleged ineffective assistance of counsel

based on her prior counsel’s failure to file a timely brief. See Matter of Lozada, 19 I. &

N. Dec. 637 (BIA 1988) (establishing the requirements for filing a motion to reopen

based upon a claim of ineffective assistance of counsel). The BIA, in an order dated

April 14, 2004, denied this motion as well, observing that it was not timely and did not

address the issue of untimeliness. Moreover, the BIA explained that Chen had not shown

that the appellate brief attached to the motion would have resulted in a reversal of the IJ’s

ultimate decision, and that the majority of the evidence attached to the brief would not

have constituted new, previously unobtainable evidence sufficient to support a remand to



                                              3
the IJ. It is from this order that Chen now petitions this Court.

                                             III.

       A motion to reopen must be filed within ninety (90) days after entry of the order of

removal. 8 C.F.R. § 1003.2(c)(2). The BIA dismissed Chen’s appeal on August 27,

2003. Approximately five months later, on January 30, 2004, she filed her motion to

reopen alleging ineffective assistance of counsel. Accordingly, the motion was untimely

and correctly denied by the BIA.

                                             IV.

       Chen nonetheless contends that her motion to reopen was timely under the doctrine

of equitable tolling, or, in the alternative, that the BIA should have exercised its limited

discretionary authority to overlook the untimeliness of the filing. See In re G-D-, 22 I. &

N. Dec. 1132 (BIA 1999) (discussing the limited discretionary authority of the BIA under

8 C.F.R. § 1003.2(a) to reopen cases sua sponte, despite the petition being time-barred).

We lack jurisdiction to consider these issues, however, because Chen raised neither

argument before the BIA. See 8 U.S.C. § 1252(d)(1) (“A court may review a final order

of removal only if . . . the alien has exhausted all administrative remedies available to the

alien as of right.”); Zheng v. Gonzales, 422 F.3d 98, 107-108 (3d Cir. 2005) (“The failure

to exhaust this claim before the BIA ‘bars consideration of particular questions not raised

in an appeal to the [BIA].’”). Equitable tolling of the time to reopen is not available

where “equitable tolling was not argued before the BIA nor discussed by the BIA.”



                                              4
Taniguchi v. Schultz, 303 F.3d 950, 955 (9th Cir. 2002). Because Chen did not exhaust

these arguments before the BIA, they were not preserved for our review and, accordingly,

we lack jurisdiction to review them.

                                             V.

       The BIA ruled against Chen on two other grounds in its April 14, 2004 order,1 but

because we dispose of the matter on the issue of the timeliness of her motion to reopen

we will not address them. We have considered all the contentions presented by the

parties and conclude that no further discussion is necessary. The petition for review will

be denied.




1
 The BIA also ruled against Chen because (1) she did not show that her appellate brief
would have resulted in a reversal of the IJ’s ultimate decision and (2) that the majority of
evidence attached to the brief would not have constituted new, previously unobtainable
evidence sufficient to support a remand.

                                             5
