Ni v. Sessions , 702 F. App'x 674 ( 2017 )

FILED
United States Court of Appeals
Tenth Circuit
July 7, 2017
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
SHUN CHEN NI,
Petitioner,
v. No. 16-9525
(Petition for Review)
JEFFERSON B. SESSIONS, III,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before KELLY, MURPHY, and MATHESON, Circuit Judges. **
Petitioner Shun Chen Ni seeks review of the Board of Immigration
Appeals’s (BIA) denial of his motion to reopen his removal proceedings.
1 R.3–5. Our jurisdiction arises under 8 U.S.C. § 1252(a)(1), and we deny the
petition for review.
Mr. Ni, a Chinese native and citizen, was arrested for shoplifting in
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
February 2008. 1 Rawle 544–45. The Department of Homeland Security
subsequently charged Mr. Ni with being present in the United States without
proper admission or parole pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). 1 Rawle 594.
Mr. Ni appeared before an immigration judge. He indicated he arrived in
the United States in October 2002, id. at 524, which made his 2008 asylum
application untimely under 8 C.F.R. § 208.4(a)(2). Mr. Ni alleged two changed
circumstances that he says caused his delay: (1) the fact that he has had two
children while in the United States might prompt Chinese officials to sterilize him
upon returning, and (2) his conversion to Christianity could subject him to
religious persecution in China. 1 Rawle 595–96. The immigration judge concluded
that neither circumstance excused the untimely filing of his application for
asylum. Id. at 596. But even assuming the asylum application was timely filed,
the judge explained that Mr. Ni was not a credible witness, and even if he were,
his application failed on the merits. Id. at 621–22. His claims regarding
withholding of removal and the Convention Against Torture required higher
burdens of proof than that for asylum, and were likewise rejected. Id. at 622.
The immigration judge did, however, grant Mr. Ni voluntary departure. Id.
at 622–23.
In February 2012, the BIA dismissed his appeal for substantially the same
reasons, id. at 386–88, and denied Mr. Ni’s motion to reconsider later that June,
id. at 330–31. Continuing pro se, Mr. Ni filed a petition for review in July 2012.
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About a year later, Mr. Ni’s case was transferred from the Second Circuit to the
Tenth Circuit, and was dismissed for failure to prosecute. Order, Ni v. Holder,
No. 13-9563 (10th Cir. Aug. 13, 2013).
In January 2016, Mr. Ni filed an untimely motion to reopen his removal
proceedings. 1 Rawle 12–18. He argued that the court should toll the filing deadline
because (1) his former attorney was ineffective for failing to recognize that he
arrived in the United States in 1997, not 2002, which he alleges prevented him
from applying for cancellation of removal, and (2) conditions for Christians in
China have worsened. Id. at 14–17. That May, the BIA denied Mr. Ni’s motion
because neither of Mr. Ni’s circumstances warranted tolling the deadline. Id.
at 3–5. With respect to ineffective assistance, the BIA explained that he failed to
exercise diligence in bringing his claims before the BIA and did not show how his
former attorney’s alleged mistake prejudiced him. Id. at 4. The BIA also
concluded that the conditions in China had not materially changed since the
immigration judge’s 2009 decision. Id. at 4–5.
We review the BIA’s denial of a motion to reopen removal proceedings for
an abuse of discretion. I.N.S. v. Abudu, 485 U.S. 94, 105 (1988). Motions to
reopen may generally only be “filed within 90 days of the date of entry of a final
administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(i). Mr. Ni’s
decision was final in June 2012 when the BIA denied reconsideration. Therefore,
the motion to reopen, which was submitted in January 2016, was untimely.
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But the 90-day deadline may be tolled upon a showing of ineffective
assistance of counsel. Riley v. I.N.S., 310 F.3d 1253, 1257–58 (10th Cir. 2002).
To make such a showing, Mr. Ni must meet the Lozada procedural requirements 1
and demonstrate that he exercised diligence in pursuing his case during the period
he seeks to toll. Id. at 1258. Furthermore, Mr. Ni must show that counsel’s
ineffective assistance prejudiced him. See Ochieng v. Mukasey, 520 F.3d 1110,
1115 (10th Cir. 2008).
The BIA did not abuse its discretion in denying Mr. Ni’s motion to reopen.
Mr. Ni has not explained why he waited more than three years to file it. Even
assuming he met the Lozada and prejudice requirements, the BIA could readily
conclude that he has not demonstrated diligence.
Mr. Ni also argues that the 90-day deadline should not apply to him
because persecution against Christians in China has worsened. In support of his
argument, he cites 8 U.S.C. § 1229a(c)(7)(C)(ii), which makes the deadline
inapplicable if the motion to reopen “is based on changed country conditions
arising in the country of nationality . . . if such evidence is material and was not
available and would not have been discovered or presented at the previous
proceeding.” The BIA did not abuse its discretion in rejecting this argument
1
“[C]laims of ineffective assistance of counsel require a threefold showing:
1) [an] affidavit detailing agreement with counsel, 2) [an indication that] counsel
[was] informed of allegations and [was] given [the] opportunity to respond, and
3) [proof that the] complaint [was] filed with disciplinary authorities.” Riley, 310
F.3d at 1258 (citing Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1998)).
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because Mr. Ni has failed to show that conditions in China have materially
changed within the last three years. Indeed, the Chinese government has
consistently regulated religion and oppressed underground churches and their
members. Because Mr. Ni’s tolling arguments are not meritorious, the motion to
reopen is untimely.
For these reasons, we DENY the petition for review.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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