                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-14-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4532




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"Huang v. Atty Gen USA" (2007). 2007 Decisions. Paper 1473.
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CLD-127                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                    NO. 06-4532
                                 ________________

                                ZHI WEN HUANG,

                                          Petitioner

                                          v.

              ATTORNEY GENERAL OF THE UNITED STATES,

                                          Respondent
                     ____________________________________

                          On Petition for Review of an Order
                         of the Board of Immigration Appeals
                              (Agency No. A73-603-213)
                         Immigration Judge: William Strasser
                    _______________________________________

                    Submitted On Motion For Summary Affirmance
                     Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  February 16, 2007

          Before:      RENDELL, SMITH AND JORDAN, Circuit Judges.

                               (Filed March 14, 2007)


                             _______________________

                                     OPINION
                             _______________________
PER CURIAM

       Zhi Wen Huang, a native and citizen of China, petitions for review of the order of

the Board of Immigration Appeals (“BIA” or “Board”) denying his motion to reopen his

removal proceedings. Huang has also filed a motion for a stay of removal. The

Government has filed a motion for summary affirmance of the BIA’s order, to which

Huang has filed a response. We will grant the Government’s motion, deny the petition

for review, and deny the stay motion.

       In 1992, Huang entered the United States and filed an application for asylum and

withholding of removal, claiming that he feared persecution in connection with his

participation in student democracy movement demonstrations in 1989. After a hearing,

on January 30, 1996, the Immigration Judge denied relief on Huang’s claims, ordered his

removal, and granted voluntary departure by May 6, 1996 in lieu of removal. On April

21, 1997, the BIA dismissed Huang’s appeal and granted voluntary departure within

thirty days. In dismissing the appeal, the Board stated, inter alia, that “no separate brief

or written statement has been submitted to date even though it was represented in the

Notice of Appeal that one would be filed. Moreover, no explanation for this failure has

been provided.”

       More than nine years later, on May 12, 2006, Huang, represented by new counsel,

filed a motion to reopen with the BIA. He asserted that he should benefit from equitable

tolling of the regulatory time limit because prior counsel was ineffective in failing to file

a brief in support of his appeal. He also requested sua sponte reopening under 8 C.F.R.

                                              2
§ 1003.2(a). In support, Huang asserted that his case presented exceptional circumstances

in light of the ineffective assistance of counsel and his changed circumstances of having

two children born in the United States in 2002 and 2005, in violation of China’s

population control policy. On September 26, 2006, the Board denied the motion to

reopen as untimely filed. The Board noted Huang’s current counsel’s inquiry letter to

former counsel, which is dated April 20, 1996, and considered Huang’s assertion that he

did not understand the implications of the Board’s decision dismissing his appeal.

However, the Board concluded that Huang failed to account for the nine years that had

elapsed and failed to provide any reason for his failure to act during that time. In

addition, the Board declined to reopen Huang’s case sua sponte, noting that the birth of

two children in the United States did not present exceptional circumstances that warranted

such treatment. The Board further noted that Huang did not seek reopening based on

changed country conditions under 8 C.F.R. § 1003.2(c)(3)(ii).

       We review a final order of the BIA denying a motion to reopen for abuse of

discretion. Mahmood v. Gonzales, 427 F.3d 248, 250 (3d Cir. 2005). Generally, a

motion to reopen must be filed before the BIA within ninety days of the final

administrative decision. 8 C.F.R. § 1003.2(c)(2). This deadline may be equitably tolled

by a showing of ineffective assistance of counsel; however, the alien must show that he

has exercised due diligence in pursuing his claim. See Mahmood, 427 F.3d at 252-53.

As for motions to reopen proceedings sua sponte, the Board has discretion to deny such a

motion, even if the party moving has made out a prima facie case for relief. 8 C.F.R.

                                              3
§ 1003.2(a).

       Here, Huang allowed more than nine years to elapse before filing a motion to

reopen. Huang attempts to justify this delay by stating that he was unaware of the import

of the Board’s decision, asserting that he only became aware when he retained current

counsel, a circumstance prompted by the removal proceedings begun against his wife. He

asserts that he exercised due diligence by filing his motion to reopen within a few months

of retaining current counsel. Even if true, these allegations do not show that Huang

exercised due diligence in discovering and pursuing his ineffective assistance claim.

       In his response to the Government’s motion for summary affirmance, Huang

argues that we should deny the motion because it does not address the other asserted basis

for reopening, namely, the birth of his two children in the United States. However, this

Court generally lacks jurisdiction to review the BIA’s decision not to exercise its

discretion to consider sua sponte an untimely motion to reopen. See Calle-Vujiles v.

Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003) (discussing 8 C.F.R. § 1003.2(a) as

previously-found at 8 C.F.R. § 3.2(a)(1999)).1 We cannot reach this issue in the petition

for review.


   1
     Huang also argues that summary affirmance is not appropriate in light of the similar
facts in Guo v. Gonzales, 463 F.3d 109 (2d Cir. 2006). In Guo, the Court of Appeals for
the Second Circuit concluded that the BIA had abused its discretion in denying a motion
to reopen based on changed country conditions concerning enforcement of China’s one-
child policy with respect to foreign-born children. As noted above, Huang did not seek to
reopen his case based on changed country conditions. As such, whether the BIA should
have reopened Huang’s case based on changed country conditions is an issue not properly
before us.

                                             4
      Because this appeal does not raise a substantial question, we grant the

Government’s motion for summary affirmance and will deny the petition for review.

See Third Circuit LAR 27.4 and I.O.P. 10.6. We deny Huang’s motion for a stay of

removal.




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