Opinion
20-72767
10-26-2022
FEI ZHAO, Petitioner, v. MERRICK B. GARLAND, ATTORNEY GENERAL OF THE UNITED STATES, Respondent.
NOT FOR PUBLICATION
Submitted October 20, 2022 Portland, Oregon
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A205-187-070
Before: PAEZ and BADE, Circuit Judges, and LEFKOW, District Judge.
MEMORANDUM [*]
Petitioner Fei Zhao, a native and citizen of China, seeks review of an order of the Board of Immigration Appeals (BIA) dismissing his appeal from a decision of the Immigration Judge (IJ) to deny his motion to reopen to rescind an in absentia removal order. We have jurisdiction under 8 U.S.C. § 1252. We "review the BIA's denial of a motion to reopen for an abuse of discretion." Hernandez-Ortiz v. Garland, 32 F.4th 794, 800 (9th Cir. 2022). Where, as here, the BIA adopted the IJ's reasoning and provided its own review of the evidence and law, we review both the IJ and BIA decisions. See Ali v. Holder, 637 F.3d 1025, 1028 (9th Cir. 2011). An agency abuses its discretion only if its decision is arbitrary, irrational, or contrary to law, and the agency's factual findings are reviewed for substantial evidence. See Hernandez-Ortiz, 32 F.4th at 800.
Moreover, this court may only exercise jurisdiction over the BIA's decision to deny reopening pursuant to its sua sponte authority "for the limited purpose of reviewing the reasoning behind the decisions for legal or constitutional error." Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016). We deny the petition for review.
1. The BIA did not abuse its discretion in denying Zhao's motion to reopen. On June 11, 2013, Zhao and his attorney attended a master calendar hearing, where the IJ scheduled Zhao's individual hearing for September 2, 2015. On September 2, 2015, neither Zhao nor his attorney appeared. The IJ ordered Zhao removed in absentia.
On August 9, 2019, Zhao filed a motion to reopen to rescind the in absentia removal order based on lack of notice due to ineffective assistance from his former attorney. See 8 U.S.C. § 1229a(b)(5)(C) (providing that an alien may rescind an in absentia removal order by filing a motion to reopen within 180 days of the date of the removal order and demonstrating that exceptional circumstances prevented his appearance at the hearing); see also Reyes v. Ashcroft, 358 F.3d 592, 596 (9th Cir. 2004) (holding that ineffective assistance of counsel may constitute an exceptional circumstance). He argued that due to the ineffective assistance of his prior attorney, he "did not receive notice of his September 2, 2015 hearing." His supporting affidavit stated that after the 2013 hearing, counsel told him to "wait for the letter" and did not take his phone calls. He also argued that his prior attorney's ineffective assistance caused him to miss the deadline for filing a motion to reopen, and thus equitable tolling applied. See Iturribarria v. INS, 321 F.3d 889, 899 (9th Cir. 2003) (recognizing that the limitation period may be equitably tolled).
The IJ denied the motion to reopen. The IJ reviewed the audio recording of the June 11, 2013 hearing and found that Zhao was both personally served with notice and verbally informed, through an interpreter, of the September 2, 2015 hearing date. The IJ also considered a letter from Zhao's former attorney stating that, after the June 2013 hearing, he met with Zhao in his office, advised him of the September 2, 2015 merits hearing, and gave Zhao the original hearing notice after making a copy for himself. The former attorney also denied that he advised Zhao to obtain false medical documentation for a motion to reopen.
The BIA adopted the IJ's bases for finding that Zhao had actual notice of the September 2, 2015 hearing, concluding that no evidence showed that the former attorney's actions had led Zhao to being misinformed or misadvised. The BIA also determined that Zhao's new, previously unavailable evidence of a letter from the California Bar concerning the closure of the complaint against his former attorney was not material to his eligibility for relief because the letter did not establish that the former attorney's actions had prevented him from attending the September 2, 2015 hearing.
The BIA's determination that Zhao did not establish ineffective assistance by his former attorney was not an abuse of discretion because it is supported by substantial evidence. The record reflects that the agency considered Zhao's statements in his affidavit regarding how counsel "misinformed and misadvised him." There is no indication in the record that the agency failed to accept Zhao's statements as true. See Maroufi v. INS, 772 F.2d 597, 600 (9th Cir. 1985) ("The BIA is required to accept as true the facts stated in an alien's affidavit in ruling upon his motion to reopen unless it finds those facts to be 'inherently unbelievable.'") (citation omitted). Substantial evidence supports the agency's finding that Zhao had personal notice of the September 2015 hearing, and Zhao has not pointed to record evidence compelling the conclusion that his former attorney's actions prevented his appearance at that hearing. See 28 U.S.C. § 1229a(b)(5)(C); see also Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017) ("[T]o reverse such a finding, we must find that the evidence not only supports a contrary conclusion, but compels it."). Accordingly, the BIA did not abuse its discretion in denying the motion to reopen.
2. Because the BIA did not abuse its discretion in determining that Zhao had not shown ineffective assistance of counsel, we find no constitutional error in the BIA's decision to deny sua sponte reopening.
PETITION DENIED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
The Honorable Joan H. Lefkow, United States District Judge for the Northern District of Illinois, sitting by designation.