                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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                                                                  NOT PRECEDENTIAL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
