                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0124n.06

                                           No. 08-4709                                 FILED
                                                                                    Feb 24, 2010
                          UNITED STATES COURT OF APPEALS                      LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT

YANGNING RONG,                                  )
                                                )
       Petitioner,                              )
                                                )
v.                                              )    ON APPEAL FROM THE BOARD OF
                                                )    IMMIGRATION APPEALS
ERIC H. HOLDER, JR.,                            )
                                                )
       Respondent.                              )


Before: BATCHELDER, Chief Judge; SUTTON, Circuit Judge; and WISEMAN, District Judge.*


       WISEMAN, District Judge. Yangning Rong (hereinafter, “Petitioner” or “Rong”) petitions

for review of the order of the Board of Immigration Appeals (BIA) denying his motion to reconsider.

Because the BIA did not abuse its discretion in denying Rong’s motion, we deny his petition.

                                                I.

       Rong, a Chinese citizen, entered the United States on November 19, 1998 on a visitor’s visa

with Yong Wu, his wife at the time. On May 27, 1999 the Immigration and Naturalization Service

(“INS”) issued Notices to Appear, charging Rong and Wu with removability under § 237(a)(1)(B)

of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(1)(B), for remaining in the

United States for a time longer than permitted. In July 1999, Rong and Wu appeared in Immigration

Court and conceded removability, admitting the factual allegations made against them.



*
 The Honorable Thomas A. Wiseman, Jr., Senior United States District Judge for the Middle District
of Tennessee, sitting by designation.
No. 08-4709
United States of America v. Rong


        Wu filed an application for asylum in August 1999, alleging that she had been subjected to

forced abortions in China. Rong was listed as her derivative beneficiary. The hearing on her

application took place on November 22, 1999 before an Immigration Judge (“IJ”), who issued an oral

decision the same day denying relief, and further finding that Wu had filed a frivolous application

for asylum pursuant to INA § 208(d), 8 U.S.C. § 1158(d). Rong and Wu were ordered removed to

China. Petitioner maintains that, inter alia, this unfavorable determination was a result of his

ineffective assistance of counsel; specifically here, the failure of his then counsel, Tao, to provide

a certificate of translation for the documents allegedly corroborating Rong’s and Wu claim (as a

result of which the IJ refused to consider that information), and the failure of Tao to object to

translation errors which occurred during the proceeding. According to Petitioner, the attorney’s

errors resulted in the IJ’s denial of Wu and Rong’s claim as well as his finding that Wu and Rong

had filed a frivolous application, thereby barring them from future relief and later serving as the basis

for the refusal of the Department of Homeland Security (“DHS”) to enter into a joint motion to

reopen with Rong.

        In December 1999, through new counsel, Rong and Wu filed an administrative appeal of the

IJ’s November 22, 1999 decision with the BIA. The new attorney did not raise any claim of

ineffective assistance of counsel regarding Tao’s alleged errors. The BIA affirmed the IJ’s decision

without opinion, and dismissed the appeal on April 8, 2003. The BIA did, however, vacate the IJ’s

finding that Wu’s asylum application was frivolous, on the basis that the record did not reflect that

Wu was given the requisite advisals.


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        During the pendency of the BIA appeal, Rong’s employer sponsored him for an I-140,

employment-based immigration petition, and Rong’s sister filed an I-130, a U.S. citizen family-

member immigration petition. On March 24, 2003 Rong’s employer’s petition was approved by

DHS, and Rong retained Ying, his employer’s attorney, to file an adjustment of status I-485

application. Petitioner maintains that, acting on the advice of his attorney at the time, he did not file

a timely Motion to Reopen based on the new evidence of his adjusted status within the ninety days

prescribed, but, instead, filed a petition for review with this Court. On September 24, 2004, this

Court denied that petition.

                                   Rong’s First Motion to Reopen

        In December 2004, now represented by attorney Wang, Rong and Wu filed a motion to

reopen the Board’s April 8, 2003 decision affirming the IJ’s denial of Wu’s application for relief

from removal, arguing for adjustment of status based on Rong’s sister’s I-130 immigration petition

and his employer’s I-140 visa petition that was approved by the DHS on March 24, 2003. According

to Rong, Wang forgot to include the I-485 applications in the exhibits when he submitted Rong’s

motion to reopen.

        On January 14, 2005, the BIA received a request from Wang that Rong’s December 2004

motion to reopen be withdrawn, and on February 15, 2005, the BIA acknowledged that the motion

had been withdrawn. Rong claims that this motion was withdrawn by Wang, his attorney at that

time, without his knowledge or consent, and that Wang’s decision to withdraw his motion to reopen

after ninety days constituted ineffective assistance of counsel.


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                                 Rong’s Second Motion to Reopen

       Attorney Wang filed a second motion to reopen with the BIA on May 26, 2005, again seeking

adjustment of Rong’s status based on his I-130 and I-140 visa petitions, and based on the previously

forgotten I-485 applications. Wang had sought to have the DHS join in the motion to reopen; DHS

denied that request. In his motion to reopen, Wang, for Rong, incorrectly cited the negligence or

incompetence of his first lawyer Ying (it was his second lawyer) as the cause of Rong’s having

missed the deadline for filing the initial motion to reopen by filing with this Court instead of the

BIA. The second motion to reopen, however, was rejected by the BIA because it was nearly two

years late; the BIA declined to toll the deadline based on the allegation that the first attorney had

rendered ineffective assistance, since that attorney had never represented Rong before the IJ or the

BIA. The BIA also noted that the first motion to reopen had been withdrawn without explanation,

and Rong had failed to advance any persuasive reason for the current motion’s untimely filing. Rong

further alleges that Wang did not inform him of this BIA decision

       On April 18, 2007, Rong retained yet another attorney, Xie, who advised him that she would

also attempt to file a joint motion to reopen Rong’s removal proceeding based on Rong’s change in

status. Petitioner points out that Xie also did not suggest an ineffective assistance of counsel claim.

In July 2007, counsel for DHS rejected Xie’s request that DHS agree to the filing of a joint motion

to reopen, again based on the finding that Rong’s previous application for asylum was frivolous,

despite the fact that this finding by the IJ had been overturned by the BIA. As a result, Xie never




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actually filed a motion to reopen. Rong maintains that he was not informed of that fact until January

2008.

                                 Rong’s Third Motion to Reopen

        Rong then retained new counsel, Zhou, to represent him in his February 14, 2008 I-485

interview. On February 12, 2008, Zhou filed a new I-130 petition and a third motion to reopen with

the BIA based on Rong’s divorce and subsequent remarriage to a U.S. Citizen, Rong Sun (“Sun”).

Rong also argued that his status should be changed based on his permanent employment in the

United States. The motion did not seek equitable tolling based on ineffective assistance of counsel.

On May 23, 2008, the BIA denied this third motion as well, finding it untimely and “number-

barred.” Finally, the BIA also rejected Rong’s constitutional claims, finding that this Court had

already affirmed the BIA’s decision on the merits of this application for relief from removal.

                                   Rong’s Motion to Reconsider

        On June 23, 2008, through present counsel, Rong filed a timely motion to reconsider the

Board’s May 23, 2008 decision denying his third motion to reopen. In pertinent part, Rong argued

that the BIA’s previous decisions overlooked the issues concerning ineffective assistance of counsel.

On November 25, 2008, the BIA denied Rong’s motion, finding that it was both untimely and

number-barred. The BIA further found that, since Rong had not properly raised the ineffective-

assistance claim in his February 12, 2008 motion to reopen, the BIA could not have overlooked it.

Additionally, the BIA found that Rong had not complied with any of the procedural requirements

of set forth in Matter of Lozada, 19 I & N. Dec. 637 (BIA 1988). Finally, the BIA declined to


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exercise its discretion to reopen Rong’s case sua sponte because he had not presented evidence of

exceptional circumstances which warranted such action.

                                                  II.

       In this appeal, Petitioner argues the BIA abused its discretion by failing to take administrative

notice of or otherwise consider his official documents as part of his motion to reconsider; to wit, his

I-130 and I-140 applications, the latter of which had been approved by DHS. While a motion to

reopen must set forth new facts, supported by evidentiary material, a motion to reconsider, by

contrast, only contests the correctness of the original decision based solely on the previous record.

8 C.F.R. § 1003.2(b). A court reviews the BIA’s denial of a motion to reconsider for abuse of

discretion. Sswajje v. Ashcroft, 350 F.3d 528, 532 (6th Cir. 2003). Because the BIA has such broad

discretion, a party seeking reopening or reconsideration bears a heavy burden. I.N.S. v. Doherty, 502

U.S. 314, 323 (1992).

       In the present case, Rong’s first motion to reopen was withdrawn before any of his official

documents had been considered. His second and third motions were denied, respectively, as being

time- and number-barred. Consequently, none of his official documents were part of the record

when Rong submitted his motion to reconsider. As this Court has made clear, while the BIA may

consider such documents on a motion to reconsider, its failure to do so does not constitute an abuse

of discretion. Alzoti v. Gonzales, 477 F.3d 448, 453 (6th Cir. 2007). Therefore, even if the BIA

might well have taken administrative notice of his official documents, especially the DHS-approved




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I-140, it did not abuse its discretion by declining to consider Petitioner’s documents when they were

not part of the original record. This argument therefore fails.

       Rong argues next that the BIA erred when it refused to consider, or “overlooked,” Rong’s

ineffective assistance of counsel claim in denying his motion to reconsider. In order to prove

ineffective assistance of counsel in compliance with the “Lozada requirements,” an alien “must (1)

submit an affidavit describing the agreement for representation entered into with former counsel, (2)

inform former counsel of the charge for the purpose of allowing him to respond to the complaints

being made against him, and (3) report whether a complaint has been filed with the appropriate

disciplinary authorities.” Hamid v. Ashcroft, 336 F.3d 465, 468 (6th Cir. 2003) (citing Matter of

Lozada, 19 I & N. Dec. 637 (BIA 1988)) (enumeration added). There is no evidence that Rong

properly raised his ineffective assistance of counsel claim in compliance with Lozada before the

BIA; in fact, Rong concedes that he did not comply with the Lozada requirements and, instead,

requests that this Court equitably waive them.

       Petitioner’s reliance on cases from the First and Ninth Circuits in support of his argument

for equitably waiving the Lozada requirements is to no avail when the Sixth Circuit has made it clear

that, within this Circuit, the Lozada requirements may be strictly enforced. Hamid, 336 F.3d at 469

(denying a similar request for equitable waiver and finding that sound policy reasons support

compliance with the Lozada requirements because they facilitate a more thorough evaluation by the

BIA and discourage baseless accusations). Because Rong never properly raised a claim of

ineffective assistance of counsel before the BIA in compliance with Lozada, this Court simply does


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not have jurisdiction to consider this claim in the first instance. Pepaj v. Mukasey, 509 F.3d 725,

727 (6th Cir. 2007). This argument also is without merit.

       Petitioner further argues the BIA erred in failing to convert his motion to reconsider into a

motion to reopen. As an initial matter, Rong is correct in asserting that the BIA does have the

discretion to recharacterize improperly labeled motions. Alzoti v. Gonzales, 477 F.3d 448, 452–53

(6th Cir. 2007) (citing Matter of Cerna, 20 I&N Dec. 399, 400 (BIA 1991)). However, the reasoning

of his argument contains two fatal flaws. First, because the BIA has wide discretion, which it only

violates when it acts “arbitrarily, irrationally, or contrary to law,” its decision here not to

recharacterize Rong’s motion, without more, cannot suffice to support a finding of abuse of

discretion. Id. at 451, 453. Second, even if the BIA had converted Rong’s motion into a motion to

reopen, such a motion would have been subsequently denied as being both time- and number-barred,

rendering any such action futile. Consequently, this argument too is without merit.

       Finally, we note that, while Rong’s failure to comply with Lozada deprives this Court of

jurisdiction to hear his ineffective-assistance claim, nothing in this opinion prevents Rong from

raising this claim in the first instance as part of another motion to reopen before the BIA in

compliance with Lozada. If Rong’s allegations regarding his prior counsel are true, he has been the

victim of a uniquely woeful set of attorneys, and, were Rong to comply with Lozada in a subsequent

motion to reopen, the BIA might well give consideration to these equitable factors in deciding

whether equitable tolling of the time and numerical limitations should apply. Of course, we cannot

speculate on the likelihood that such a motion would succeed—especially given the uncertain status


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of the law in this area, see Matter of Comprean, 25 I & N Dec. 1 (A.G. 2009) (vacating earlier

opinion that overruled Lozada)—but we see no reason why a fourth motion to reopen should be

more improbable than a third, especially given the degree of ineffectiveness alleged here.

                                               III.

       For the foregoing reasons, we hereby deny Rong’s petition for review.




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