Xue Su Wang v. Holder , 750 F.3d 87 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-1767
XUE SU WANG,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Torruella, Selya and Lipez,
Circuit Judges.
Jeffrey E. Baron and Baron & Shelkin, P.C. on brief for
petitioner.
Stuart F. Delery, Assistant Attorney General, Shelley R. Goad,
Assistant Director, and Carmel A. Morgan, Trial Attorney, Office of
Immigration Litigation, Civil Division, United States Department of
Justice, on brief for respondent.
April 30, 2014
SELYA, Circuit Judge. Although a familiar bit of
homespun philosophy tells us that hope springs eternal, litigation
founded on hope alone, unsupported by persuasive legal or factual
arguments, should not be allowed to persist eternally. Such is the
lesson of this case.
Petitioner Xue Su Wang, a Chinese national, seeks
judicial review of a final order of the Board of Immigration
Appeals (BIA) denying his motion to reopen removal proceedings. The
petitioner's case began nearly two decades ago, but the relevant
facts are susceptible to succinct summarization.
The petitioner entered the United States without
inspection in 1993. On November 28, 1994, he filed an application
for asylum. Within a matter of months, federal authorities served
him with a show-cause order charging removability. See 8 U.S.C.
§ 1227(a)(1)(B) (formerly 8 U.S.C. § 1251(a)(1)(B)).
A removal hearing, structured to consider both the
government's charge and the petitioner's cross-application for
asylum, was scheduled for August 16, 1995, at the immigration court
in Boston. The petitioner failed to appear, and the immigration
judge (IJ) entered an order of deportation in absentia.
Nothing of consequence happened until November 12, 1998,
when the petitioner moved to reopen the proceedings. He conceded
that he had known of the scheduled show-cause hearing, but said
that he did not appear because an immigration consultant whom he
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had hired advised him that the proceedings would be transferred to
New York. He also complained that he never received the in
absentia deportation order because it had been mailed to his old
Boston address. He admitted, though, that he knew by January of
1996 that there were problems with his asylum claim because his
consultant had informed him that the claim had been "cancelled" and
he could do nothing further to pursue it.
The IJ recognized that special time-bar rules apply to
motions to reopen following in absentia deportation orders. See 8
C.F.R. § 1003.23(b)(4)(iii)(A). Nevertheless, the IJ denied the
petitioner's motion as untimely. The IJ explained that the
petitioner's motion was filed significantly beyond the 180-day
deadline for such motions and that the petitioner had waited too
long to seek reopening after learning the actual status of his
application. The petitioner appealed to the BIA. By order dated
November 15, 2000, the BIA affirmed without opinion the IJ's
refusal to reopen the proceedings. The petitioner chose not to
seek judicial review of this order.
We fast-forward to February 12, 2009 (more than eight
years later). On that date, the petitioner filed a second motion
to reopen — this time, directly with the BIA — in which he argued
that his case should be reopened because of changed country
conditions. See id. § 1003.2(c)(3)(ii). Alternatively, he argued
for relief due to ineffective assistance of counsel. Unimpressed,
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the BIA denied the second motion to reopen, concluding that neither
of the petitioner's asserted grounds had merit. The petitioner
sought judicial review and this court held that the BIA had not
abused its discretion. See Wang v. Holder, No. 09-2535 (1st Cir.
May 7, 2010) (unpublished judgment).
Almost three more years elapsed before the petitioner —
on February 27, 2013 — filed yet a third motion to reopen. This
motion (also lodged directly with the BIA) argued that reopening
was warranted because (i) the petitioner had not received notice of
the original deportation order, (ii) the filing period never
commenced due to this lack of notice, and (iii) he deserved the
benefit of equitable tolling. The BIA concluded that no plausible
justification existed for relieving the petitioner from the 180-day
period for motions to reopen in absentia removal proceedings.
Accordingly, it denied the motion as untimely. See 8 C.F.R.
§ 1003.23(b)(4)(iii)(A)(1). This petition for judicial review
followed.
"Motions to reopen removal proceedings are disfavored as
contrary to the compelling public interests in finality and the
expeditious processing of proceedings." Fustaguio do Nascimento v.
Mukasey, 549 F.3d 12, 15 (1st Cir. 2008) (internal quotation marks
omitted). We review the BIA's denial of a motion to reopen only
for abuse of discretion. See Kucana v. Holder, 558 U.S. 233, 242
(2010). Under this deferential standard, the movant must "show
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that the BIA committed an error of law or exercised its judgment in
an arbitrary, capricious, or irrational way." Raza v. Gonzales,
484 F.3d 125, 127 (1st Cir. 2007).
Motions to reopen immigration proceedings are generally
subject to time and number bars. In the ordinary case, a party may
file only one motion to reopen, and that motion must be filed
within 90 days of the date of entry of the final administrative
order. 8 C.F.R. § 1003.23(b)(1).
We deal here, as did the agency, principally with the
time bar.1 A separate temporal framework applies to motions to
reopen in absentia removal orders. In such a case, an alien who
demonstrates that his failure to appear was due to exceptional
circumstances beyond his control may move to reopen within 180 days
of the date of the deportation order. Id.
§ 1003.23(b)(4)(iii)(A)(1). If the alien can demonstrate that he
did not receive notice of the hearing or was unable to attend
because he was in custody and his failure to appear was without
fault on his part, a motion to reopen may be filed at any time.
Id. § 1003.23(b)(4)(iii)(A)(2).
1
The applicable regulation states that, under certain
circumstances, the normal time and number bars do not apply to
motions to reopen in absentia removal proceedings. See 8 C.F.R.
§ 1003.23(b)(4)(iii)(D). But the regulation is not explicit as to
how the number bar is altered. Because this case turns on the time
bar, we do not explore this question.
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Here, the BIA noted the petitioner's concession that he
received the show-cause order, which listed the time and date of
the deportation hearing. This concession alone renders him
ineligible to take advantage of the no-time-limit largesse of 8
C.F.R. § 1003.23(b)(4)(iii)(A)(2). And even though we have not yet
decided whether equitable tolling can suspend the time limits
applicable to motions to reopen, see Charuc v. Holder, 737 F.3d
113, 115 n.2 (1st Cir. 2013), the petitioner's call for tolling is
manifestly unavailing.
For equitable tolling to apply, a party must establish
"(1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way." Neves v.
Holder, 613 F.3d 30, 36 (1st Cir. 2010) (per curiam) (internal
quotation mark omitted). In this instance, the BIA found tolling
unwarranted because the petitioner had not shown that he exercised
due diligence during the nearly two decades since his removal was
first ordered. This finding is rock-solid: the protracted delays
throughout the period from 1995 to 2013, coupled with the
petitioner's many missed opportunities to rectify the situation,
foreclose any holding that the BIA exercised its judgment
arbitrarily, capriciously, or irrationally. See, e.g., Bead v.
Holder, 703 F.3d 591, 595 (1st Cir. 2013).
The bottom line is that nothing in the petitioner's
latest motion to reopen affects our previous conclusion that
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"petitioner has not demonstrated the due diligence that would
permit our consideration of equitable tolling." Wang v. Holder,
No. 09-2535 (1st Cir. May 7, 2010) (unpublished judgment). The
petitioner obviously was aware by the time that he filed his first
motion to reopen that he had been ordered deported in absentia and
he could have argued in that motion that the 180-day deadline was
inapplicable because the IJ had not given him proper notice of that
order. His failure to make such an argument then and there is the
antithesis of due diligence.
This time around, the petitioner has not raised any
ground for relief that he could not have raised in the course of
litigating his earlier motions. Nor has he given us any plausible
reason to find that he is entitled to a third bite at the cherry.
Sooner or later, there must be an end to all things (including
attempts to thwart removal). We have reached that point. See
Lemus v. Gonzales, 489 F.3d 399, 401 (1st Cir. 2007) (explaining
that "an alien ought not to be allowed to frustrate [a] removal
order by filing an endless series of motions").
We need go no further. We conclude, without serious
question, that the BIA acted within its discretion in finding that
the petitioner's third motion to reopen was untimely. Thus, we
deny the petition for judicial review.
So Ordered.
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