CHEN v. ROSEN (2021)

SUMMARY ORDER

Petitioner Xue Yong Chen, a native and citizen of the People's Republic of China, seeks review of a July 18, 2018, decision of the BIA denying his motion to reopen. In re Xue Yong Chen, No. A072 565 303 (B.I.A. Jul. 18, 2018). We assume the parties’ familiarity with the underlying facts and procedural history. We review the BIA's denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).¹

As an initial matter, it is undisputed that Chen's 2018 motion to reopen was untimely and number-barred because his final administrative order of removal was entered in 2005 and it was his eighth motion to reopen following that order. See 8 U.S.C. § 1229a(c)(7)(A), (c)(7)(C)(i) (allowing one motion to reopen within 90 days of the final administrative order); 8 C.F.R. § 1003.2(c)(2) (same). Chen does not argue that any of the statutory or regulatory exceptions to the time and number limitations applies here. See 8 U.S.C. § 1229a(c)(7)(C)(ii), (iv); 8 C.F.R. § 1003.2(c)(3).

Instead, Chen argues that the time and number limitations should be equitably tolled. “Equitable tolling applies as a matter of fairness where a party has been prevented in some extraordinary way from exercising his rights.” Iavorski v. U.S. INS, 232 F.3d 124, 129 (2d Cir. 2000). Chen has not demonstrated that the BIA erred by declining to find that equitable tolling is appropriate here.

First, Chen argues that tolling is warranted because the grave consequences of the agency's initial determination that he filed a frivolous asylum application, an intervening change in law, and misconduct by his lawyer and the immigration judge (“IJ”) combined to produce a “manifest injustice.” Petitioner's Br. (“PB”) at 15–16. Chen, however, cites no relevant case law for the proposition that a finding of manifest injustice allows tolling in this context.² Thus, Chen has not shown that the BIA erred by failing to equitably toll the time and number limitations on this ground.

Second, Chen argues that equitable tolling is warranted based on the ineffective assistance of his counsel. A showing of ineffective assistance may provide an equitable exception to the time and number limitations, Rashid v. Mukasey, 533 F.3d 127, 130–31 (2d Cir. 2008), if the movant “exercised due diligence in pursuing the case during the period [he] seeks to toll,” Iavorski, 232 F.3d at 135. Chen argues that his counsel was ineffective because, although Chen was purportedly eligible to adjust his status a few weeks before the BIA affirmed the IJ's frivolousness finding in 2005, counsel failed to move to remand to the IJ at that point.

This argument is unavailing based on our prior decisions in this matter. In 2014, we held that equitable tolling based on ineffective assistance was not warranted as to a prior motion submitted by Chen because the BIA reasonably found that he had not acted with due diligence. See Xue Yong Chen v. Holder, 565 F. App'x 18, 20 (2d Cir. 2014). While Chen raises a new theory of ineffective assistance in his present motion, our prior reasoning — that Chen did not demonstrate due diligence because nothing prevented him from raising his ineffective assistance claim earlier — applies with equal force here and is thus binding. See Johnson v. Holder, 564 F.3d 95, 99 (2d Cir. 2009) (“The law of the case doctrine commands that when a court has ruled on an issue, that decision should generally be adhered to by that court in subsequent stages in the same case unless cogent and compelling reasons militate otherwise.”).

In short, Chen has not demonstrated that the BIA erred by failing to toll the time and number limitations and thus by denying his motion to reopen as untimely and number-barred. Because Chen offers no reason why consideration of his remaining substantive arguments is warranted notwithstanding these procedural bars,³ we do not reach these arguments.

For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.

FOOTNOTES

1.   Unless otherwise indicated, in quoting cases, we omit all internal citations, quotation marks, footnotes, and alterations.

2.   Chen appears to draw this standard instead from cases addressing the “law of the case” doctrine, where preventing a “manifest injustice” is a relevant exception. See PB at 13–14 (citing Johnson v. Holder, 564 F.3d 95, 99–100 (2d Cir. 2009); Doe v. New York City Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir. 1983)).

3.   Chen does not, for example, argue that the BIA erred by failing to reopen sua sponte.