2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-7-2013

Feng Zhang v. Attorney General United States

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-2860

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 12-2860

____________

FENG JU ZHANG,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

Respondent

__________________________________

On a Petition For Review of an Order

of the Board of Immigration Appeals

(Agency No. A074-853-532)

Immigration Judge: Henry S. Dogin

__________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

February 13, 2013

Before: SCIRICA, VANASKIE and COWEN, Circuit Judges

(Opinion filed: March 7, 2013)

____________

OPINION

____________

PER CURIAM

Feng Ju Zhang (“Zhang”) petitions for review of the Board of Immigration 

Appeals‟ final order of removal. For the reasons that follow, we will deny the petition for 

review.

Zhang, a native and citizen of China, entered the United States in September, 

1997. He is removable under Immigration & Nationality Act (“INA”) § 212(a)(6)(A)(i), 
2

8 U.S.C. § 1182(a)(6)(A)(i), as an alien present without being admitted or paroled. He 

applied for asylum, statutory withholding of removal, and protection under the 

Convention Against Torture, and a hearing was scheduled. When he failed to appear, an 

order of removal was entered in absentia on January 15, 1999.

On November 15, 2004, Zhang, through new counsel, Jim Li, Esquire, filed a 

motion to reopen removal proceedings in Immigration Court to apply for asylum. Zhang 

claimed that he did not receive notice of his hearing due to the ineffective assistance of 

his former counsel. In a supporting affidavit, Zhang noted that he learned through a 

friend of the existence of the order of removal “sometime in 1999.” A.R. 108. The 

Immigration Judge denied the motion to reopen. The IJ concluded that the motion was 

untimely by several years. Motions to reopen in absentia orders due to exceptional 

circumstances, and ineffective assistance of counsel may constitute an exceptional 

circumstance, may be filed within 180 days of the order under INA § 240(b)(5)(C)(i), 8 

U.S.C. § 1229a(b)(5)(C)(i), but Zhang‟s motion was filed well past that deadline. In the 

alternative, the IJ concluded that Zhang failed to provide prima facie evidence that he 

was entitled to the relief sought, citing Guo v. Ashcroft, 386 F.3d 556, 563-64 (3d Cir. 

2004). Zhang‟s motion to reopen did not include an application for relief, or any 

affidavits or other evidentiary material. Last, the IJ concluded that Zhang failed to 

provide prima facie evidence of changed country conditions sufficient to excuse the 90-

day time limit for filing motions to reopen under 8 C.F.R. § 1003.23(b)(1).

On August 18, 2005, the Board of Immigration Appeals affirmed without opinion 

pursuant to 8 C.F.R. § 1003.1(e)(4). Zhang petitioned for review in this Court. Pursuant 

to a joint motion, the matter was remanded to the Board in order for it to consider 
3

whether Zhang was entitled to equitable tolling of the 180-day deadline of 8 U.S.C. § 

1229a(b)(5)(C)(i).

On September 25, 2007, the Board considered the equitable tolling question under 

Mahmoud v. Gonzales, 427 F.3d 248, 252-53 (3d Cir. 2005), and Borges v. Gonzales, 

402 F.3d 398, 407 (3d Cir. 2005), and determined that the 180-day deadline should not be 

tolled. The Board noted that Zhang argued that his original attorney, Jules E. Coven, 

Esquire, failed to inform him of the January 15, 1999 hearing date, that he also was not 

personally informed of his hearing date in court through an interpreter, and that, when he 

found out about the removal order sometime in 1999, Coven had moved offices. Then, in 

April, 2001, he was seriously injured. He subsequently underwent numerous surgeries to 

repair his hand, which affected his memory and spiritual well-being.

In considering these equitable arguments and accepting Zhang‟s version of the 

facts as true, the Board found that Zhang was personally served with the Notice To 

Appear on September 30, 1997. The hearing notice dated July 14, 1998 indicated that 

Zhang was provided written and oral notice of the January 15, 1999 hearing date. By his 

own admission, Zhang learned of the order of removal no later than December 31, 1999. 

The Board then reviewed the holdings in Borges and Mahmoud, and noted in particular 

Mahmoud‟s holding that an alien must show that he acted with due diligence by taking 

steps to pursue his immigration case. The Board then determined that Zhang did not 

establish due diligence. Zhang admitted that he learned of the removal order sometime in 

1999, and yet he did not file his motion to reopen until November, 2004. The Board 

credited Zhang‟s claims concerning his medically-related memory loss beginning in 

April, 2001, but concluded that these assertions failed to account for the period from late 
4

1999 to April, 2001, a period of at least 15 months. On June 5, 2012, the Board, pursuant 

to 8 C.F.R. § 1003.2(a), reissued its September 25, 2007 decision because Zhang had not 

received notice of it. 

Zhang has timely petitioned for review. We have jurisdiction under 8 U.S.C. § 

1252(a)(1), (b)(1). In his brief on appeal, Zhang argues that the Board abused its 

discretion in rejecting his equitable tolling argument based on ineffective assistance of 

counsel. To excuse his delay in filing his motion to reopen, he argues that original 

counsel failed to advise him of the removal order and was thus ineffective in violation of 

his right to due process. In determining the case, Zhang argues, the Board “failed to 

consider the overall facts of this case, and instead focused on the gap it discovered.” See

Petitioner‟s Brief, at 9. “Any fixed time limit is irrational because [he] would have 

needed to seek new counsel to reopen his case, which was marred by his inability to 

communicate in English, the fact that Mr. Coven‟s firm did not retain a copy of his file, 

and his injury.” Id. Zhang further argues that his attorney on remand to the Board, 

Jeffrey Bloom, Esquire, failed to file a brief and was thus ineffective. See id. at 3-4, 9.

We will deny the petition for review. We review the denial of a motion to reopen 

for an abuse of discretion. Immigration & Naturalization Serv. v. Doherty, 502 U.S. 314, 

323 (1992). Under the deferential abuse of discretion standard, we will not overturn the 

Board‟s decision unless it is arbitrary, irrational, or contrary to the law. See Guo v. 

Ashcroft, 386 F. 3d 556, 562 (3d Cir. 2004). We uphold the Board‟s factual 

determinations underlying the denial of the motion to reopen if they are “„supported by 

reasonable, substantial, and probative evidence on the record considered as a whole.‟” 
5

Zheng v. Att‟y Gen. of U.S., 549 F.3d 260, 266 (3d Cir. 2008) (quoting Immigration & 

Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481 (1992)).

The Board did not abuse its discretion in determining that Zhang‟s motion to 

reopen was untimely filed and that equitable tolling was not warranted. An alien in 

removal proceedings shall be ordered removed in absentia if he fails to appear at a

scheduled hearing after having been properly provided written notice of the time and 

place of that hearing, and the agency establishes by clear, unequivocal, and convincing 

evidence that the notice was provided and that the alien is removable as charged. 8 

U.S.C. § 1229a(b)(5)(A). See also 8 C.F.R. § 1003.26(c). An order of removal entered 

in absentia may be rescinded only:

(i) upon a motion to reopen filed within 180 days after the date of the order 

of removal if the alien demonstrates that the failure to appear was because 

of exceptional circumstances (as defined in subsection (e)(1) of this 

section), or (ii) upon a motion to reopen filed at any time if the alien 

demonstrates that the alien did not receive notice in accordance with 

paragraph (1) or (2) of section 1229(a) of this title or the alien demonstrates 

that the alien was in Federal or State custody and the failure to appear was 

through no fault of the alien. 

8 U.S.C. § 1229a(b)(5)(C).

With respect to subparagraph (b)(5)(C)(i), Zhang‟s motion to reopen plainly was 

not timely filed within 180 days of the in absentia order. The administrative record 

shows that an order of removal in absentia issued on January 15, 1999 when Zhang failed 

to appear. Zhang had 180 days from this date in which to file his motion, and his filing in 

November, 2004 was well beyond the deadline. Under Borges and Mahmoud, attorney 

conduct can provide a basis for equitable tolling of the 180-day deadline, but failure to 

exercise due diligence in asserting ineffective assistance of counsel undermines any claim 

for equitable tolling. “Equitable tolling is an extraordinary remedy which should be 
6

extended only sparingly.” Mahmoud, 427 F.3d at 253 (quoting Hedges v. United States, 

404 F.3d 744, 751 (3d Cir. 2005)). 

Zhang has argued that it was arbitrary for the Board to focus its due diligence 

analysis on the gap from December 31, 1999 to April, 2001. But the November, 2004 

motion to reopen, and the affidavit Zhang submitted in support of it, substantially support 

the Board‟s conclusion that Zhang had no explanation for his failure to pursue his case 

from the time he discovered the removal order in 1999 until his injury in April, 2001. 

Accordingly, even though his medical injuries were significant, and even assuming that 

he may have accounted for the time between April, 2001 and the actual filing of the 

motion to reopen, he failed to explain why he did nothing between late 1999 and April, 

2001, a period of 15 months. The Board did not act arbitrarily in considering the 

inactivity from December 31, 1999 to April, 2001 as it reflected on whether Zhang had 

exercised diligence. “Due diligence must be exercised over the entire period for which 

tolling is desired.” Alzaarir v. Att‟y Gen. of U.S., 639 F.3d 86, 90 (3d Cir. 2011) (citing 

Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008)). “This includes both the period of 

time before the ineffective assistance of counsel was or should have been discovered and 

the period from that point until the motion to reopen is filed.” Id. Indeed, the period of 

inactivity could have been many months longer had the Board not given Zhang the 

benefit of the doubt in accounting for the months between January 15, 1999 and 

December 31, 1999. Zhang argues that his attorney moved offices, but he did not state 
7

what he did during those 15 months to find another attorney, or even assert that he took 

any action to find another attorney during this time period.1 

Zhang‟s remaining argument appears to be that his counsel on remand to the 

Board, Jeffrey Bloom, neglected to file a new brief after being given the opportunity to 

do so, and he appears to suggest that the Board dismissed his appeal without reaching the 

merits of the equitable tolling issue because no new brief was filed. See Petitioner‟s 

Brief, at 4. The record, however, reflects that, although no new brief was filed (the 

Department of Homeland Security also did not file a new brief), the Board considered 

Zhang‟s appellate brief filed on February 23, 2005, and then dismissed the appeal based 

on a merits determination of the equitable tolling issue. Zhang has failed to show that 

there is a reasonable likelihood that the result on remand would have been different had 

an additional brief been filed on his behalf. See Fadiga v. Att‟y Gen. of U.S., 488 F.3d 

142, 159 (3d Cir. 2007).

Because the Board did not abuse its discretion in determining that Zhang‟s motion 

to reopen was untimely filed and that equitable tolling was unwarranted, see Mahmoud, 

427 F.3d at 253, we need not consider his argument that he is prima facie eligible for 

asylum, statutory withholding of removal and protection under the Convention Against 

Torture, see Petitioner‟s Brief, at 12-14.

For the foregoing reasons, we will deny the petition for review.

 

1 With respect to subparagraph (b)(5)(C)(ii), there is no deadline for filing the motion to 

reopen if the alien did not receive the notice, but, under 8 U.S.C. § 1229a(b)(5)(a), notice 

may be “provided to the alien or the alien‟s counsel of record.” Zhang does not contend 

that notice of the hearing was not provided to counsel of record, and, in any event, the 

record establishes that the July 14, 1998 notice of the January 15, 1999 hearing was 

personally served on the law firm of Lebenkoff & Coven on Fifth Avenue in New York 

City, A.R. 160-61.