H-Y-Z

Cite as 28 I&N Dec. 156 (BIA 2020) Interim Decision #4000

Matter of H-Y-Z-, Respondent

Decided November 13, 2020

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Absent a showing of prejudice on account of ineffective assistance of counsel, or a

showing that clearly undermines the validity and finality of the finding, it is inappropriate

for the Board to favorably exercise our discretion to reopen a case and vacate an

Immigration Judge’s frivolousness finding.

FOR RESPONDENT: Jan Potemkin, Esquire, New York, New York

FOR THE DEPARTMENT OF HOMELAND SECURITY: Gregory Mayer, Assistant

Chief Counsel

BEFORE: Board Panel: KELLY, COUCH, Appellate Immigration Judges; PEPPER,

Temporary Appellate Immigration Judge

COUCH, Appellate Immigration Judge:

In a decision dated June 28, 2004, an Immigration Judge denied the

respondent’s applications for asylum and related relief and ordered her

removed from the United States. 1 We dismissed the respondent’s appeal on

October 27, 2005, and we denied her motion to reconsider our decision and

reopen the proceedings on December 22, 2005. The respondent filed a

second motion to reopen on November 12, 2019. The motion will be denied.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of the People’s Republic of China.

In proceedings before the Immigration Judge, she conceded that she is

removable, and she applied for relief from removal. The Immigration Judge

found that the respondent’s testimony was not credible and, after advising

her of the adverse consequences of knowingly filing a frivolous asylum

1

The respondent also applied for withholding of removal and requested protection under

the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N.

GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26,

1987; for the United States Apr. 18, 1988).

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application, determined that “material elements” of her claim were

“deliberately fabricated,” as required for a frivolousness finding under

8 C.F.R. § 1208.20 (2004). 2

The respondent’s first attorney who represented her at trial timely

appealed that ruling, alleging as one of the four reasons for the appeal that

the “Immigration Judge erred in finding the Respondent’s application to be

frivolous as it was not fabricated.” The respondent’s second counsel

prepared and filed the respondent’s appellate brief, which did not address the

frivolous application finding. We dismissed the respondent’s appeal, and

specifically affirmed the Immigration Judge’s determinations that she lacked

credibility and submitted a frivolous application for asylum.

A third counsel filed a petition for review of our decision, which the

United States Court of Appeals for the Third Circuit denied on December 18,

2006. 3 Zhou v. Att’y Gen. of U.S., 206 F. App’x 237, 239 (3d Cir. 2006).

Quoting the Immigration Judge’s finding that the respondent’s asylum

application was frivolous, the court concluded that there was “no basis to

reject the findings of either the [Immigration Judge] or the [Board].” Id.

On November 28, 2005, while the respondent’s petition for review was

pending, the same attorney also filed a motion to reconsider our decision and

reopen the removal proceedings based on an alleged mistranslation of a

foreign document that was previously submitted and considered as evidence

by the Immigration Judge. We denied the motion, which was not appealed.

We now address the respondent’s second motion to reopen, filed by her

fourth attorney 14 years after we dismissed her appeal and denied her motion,

which seeks to vacate the Immigration Judge’s finding that she knowingly

filed a frivolous asylum application in an effort to overcome the statutory bar

2

The Immigration Judge appropriately based his findings on the respondent’s lack of

credibility and poor demeanor while testifying within the context of other contradictory

evidence in the record. See Matter of Y-L-, 24 I&N Dec. 151, 155 (BIA 2007) (recognizing

that “the serious consequences of a frivolousness finding” require Immigration Judges to

afford asylum applicants certain procedural safeguards under the regulation); see also

Matter of B-Y-, 25 I&N Dec. 236, 240 (BIA 2010) (“[W]hile some incorporation by

reference from the adverse credibility findings and analysis is permissible, the Immigration

Judge’s frivolousness determination should separately address the respondent’s

explanations in the context of how they may have a bearing on the materiality and

deliberateness requirements unique to that determination.”).

3

The respondent has made no reference in her current motion to the fact that our 2005

decision was later affirmed by the Third Circuit. Although a supplemental filing made a

passing reference to the denial of her petition for review, her current counsel has not

provided the official citation to the case. Counsel is admonished that a moving party “shall

state whether the validity of the . . . removal order has been or is the subject of any judicial

proceeding and, if so, the nature and date thereof, the court in which such proceeding took

place or is pending, and its result or status.” 8 C.F.R. § 1003.2(e) (2020) (emphasis added).

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to benefits in section 208(d)(6) of the Immigration and Nationality Act,

8 U.S.C. § 1158(d)(6) (2018). She also seeks reopening based on the fact

that on January 27, 2014, her husband filed a petition to accord her derivative

status as a U nonimmigrant under section 101(a)(15)(U) of the Act, 8 U.S.C.

§ 1101(a)(15)(U) (2012). 4

II. ANALYSIS

The Board may at any time reopen or reconsider on its own motion any

case in which it has rendered a decision. See 8 C.F.R. § 1003.2(a) (2020).

In order to sustain his or her burden on a motion to reopen, an alien must

establish that the ultimate relief they seek would be merited as a matter of

discretion. See Matter of Coelho, 20 I&N Dec. 464, 472 (BIA 1992).

Motions to reopen are disfavored and strict limits are enforced in removal

proceedings where every delay works to the advantage of an alien illegally

residing in the United States who wishes to remain. INS v. Doherty, 502 U.S.

314, 323 (1992); INS v. Abudu, 485 U.S. 94, 107 (1988); Xu Yong Lu

v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001); Matter of S-Y-G-, 24 I&N Dec.

247, 252 (BIA 2007). The respondent has the heavy burden of demonstrating

that the “new evidence offered would likely change the result in the case.”

Matter of S-Y-G-, 24 I&N Dec. at 251 (quoting Matter of Coelho, 20 I&N

Dec. at 473).

There are three principal grounds on which an Immigration Judge or the

Board may deny a motion to reopen immigration proceedings: (1) the

movant has failed to establish a prima facie case for the relief sought, (2) the

movant has failed to introduce previously unavailable material evidence that

justified reopening, or (3) in cases in which the ultimate grant of relief being

sought is discretionary, the Board can pass by the first two bases for denial

and determine that even if they were met, the movant would not be entitled

to the discretionary grant of relief.5 Filja v. Gonzales, 447 F.3d 241, 255 (3d

Cir. 2006) (citations omitted).

4

The only relief the respondent seeks relates to her derivative status claim, so we need

not address the effect of the section 208(d)(6) bar on a claim to withholding of removal

under the Act or the Convention Against Torture. See 8 C.F.R. § 1208.20 (“[A] finding

that an alien filed a frivolous asylum application shall not preclude the alien from seeking

withholding of removal.”).

5

A request to reopen or reconsider any case in which a decision has been made by the

Board, which request is made by the Service, or by the party affected by the decision, must

be in the form of a written motion to the Board. See 8 C.F.R. § 1003.2(a). With limited

exceptions, a motion to reopen must be filed within 90 days of the date of entry of a final

administrative order of deportation or removal. See section 240(c)(7)(C)(i) of the Act,

8 U.S.C. § 1229a(c)(7)(C)(i) (2018); 8 C.F.R. § 1003.2(c)(2). Absent certain exceptions

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In her motion to reopen, the respondent requests we vacate the

Immigration Judge’s determination that she knowingly filed a frivolous

application for asylum, so she may overcome the statutory bar precluding her

from receiving any immigration benefit under section 208(d)(6) of the Act.

Through counsel, the respondent contends that the Immigration Judge

habitually made erroneous frivolousness findings in asylum cases like hers,

which she was unable to overcome on appeal due to her second attorney’s

ineffective assistance of counsel in the preparation and filing of her appellate

brief. Cham v. Att’y Gen. of U.S., 445 F.3d 683 (3d Cir. 2006).

A claim of ineffective assistance of counsel, if properly established, may

constitute proper grounds for reopening removal proceedings. Xu Yong Lu,

259 F.3d at 131–32. In the case of untimely motions to reopen, ineffective

assistance of counsel can serve as the basis for equitable tolling of the time

limit for filing only if it is substantiated and accompanied by a showing of

due diligence. Alzaarir v. Att’y Gen. of U.S., 639 F.3d 86, 90 (3d Cir. 2011)

(per curiam) (citing Mahmood v. Gonzales, 427 F.3d 248, 252 (3d Cir.

2005)). The Board’s “sua sponte” authority to reopen or reconsider cases is

limited to exceptional circumstances and is not meant to cure filing defects

or circumvent the regulations. Chehazeh v. Att’y Gen. of U.S., 666 F.3d. 118,

140 (3d Cir. 2012) (citing Matter of J-J-, 21 I&N Dec. 976, 984 (BIA 1997)).

A.

A finding that an application for asylum is frivolous, “unlike a

determination in regard to eligibility for [other] form[s] of relief . . . , is a

preemptive determination which, once made, forever bars an alien from any

benefit under [section 208(d)(6) of] the Act.” Matter of Y-L-, 24 I&N Dec.

151, 157 (BIA 2007). We appreciate the severity of the consequences

accompanying a finding of frivolousness, which has been described as a

“death sentence” for an asylum-seeker’s hopes of securing permanent, lawful

residence in the United States. Luciana v. Att’y Gen. of U.S., 502 F.3d 273,

278 (3d Cir. 2007) (citation omitted). And as the Attorney General

emphasized when 8 C.F.R. § 1208.20 was promulgated in 1997, the

regulatory standards for the frivolousness finding were formulated “with the

severity of the consequences in mind.” Matter of Y-L-, 24 I&N Dec. at 158

(citation omitted).

“The bar on relief due to the filing of a frivolous asylum application

becomes ‘effective as of the date of a final determination on such

application.’” Ribas v. Mukasey, 545 F.3d 922, 931 (10th Cir. 2008) (quoting

not applicable to this case, section 240(c)(7)(A) of the Act limits an alien ordered removed

to filing only one motion to reopen. See Luntungan v. Att’y Gen. of U.S., 449 F.3d 551,

557 (3d Cir. 2006).

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section 208(d)(6) of the Act). Therefore, the subsequent filing of a motion

to reopen, even one that challenges a frivolousness finding, has no effect on

the statutory bar to immigration benefits. Id. (holding that a frivolousness

finding was final despite the Board’s erroneous grant of a motion to reopen

that did not address that finding). This is consistent with the regulation

regarding motions to reopen before the Immigration Judge at 8 C.F.R.

§ 1003.23(b)(4)(i) (2020), which states that if an “asylum application was

denied based upon a finding that it was frivolous, then the alien is ineligible

to file either a motion to reopen or reconsider”). Because the respondent’s

frivolousness finding was upheld by the Board and the Third Circuit, it is

final, and section 208(d)(6) of the Act renders her ineligible for any relief.

Absent a showing of prejudice on account of ineffective assistance of

counsel, or a showing that clearly undermines the validity and finality of the

finding, it is inappropriate for the Board to favorably exercise our discretion

to reopen a case and vacate an Immigration Judge’s frivolousness finding.

Otherwise, cases could be reopened for the sole purpose of avoiding the

adverse consequences of the statutory bar to any immigration benefit

imposed by the Act. Indeed, without such prejudice, to allow an asylum

applicant to relitigate a finding of frivolousness “would undermine both the

plain language of, and the policy behind, section 208(d)(6)—as well as the

potency of the required warnings.” Matter of X-Y-C-, 25 I&N Dec. 322,

325–26 (BIA 2010). An alien, such as the respondent, who filed a frivolous

application as determined by an Immigration Judge “could escape the

consequences deliberately chosen by Congress to prevent such abuse of the

system” if we permit her to later relitigate the issues which led to those

consequences simply because she may be eligible for legal status through

some alternate means. Id. at 326; see also Matter of G-D-, 22 I&N Dec.

1132, 1135–36 (BIA 1999) (“Engaging in such a readjudication would be

tantamount to granting reconsideration, with its concomitant expenditure of

adjudicatory resources, even if we were ultimately to determine that the new

precedent did not alter the outcome.”).

Applying section 208(d)(6) of the Act to this case, the Immigration

Judge’s frivolousness finding became final on October 27, 2005, when we

dismissed the respondent’s appeal of his decision. 8 C.F.R. § 1208.20. The

consequences of this finding should have been apparent to the respondent at

the time because she was advised of them during the conduct of her removal

proceedings, and through a warning printed on the asylum application (Form

I-589) she signed under oath. Thus, the respondent had both constructive

and actual notice that she was statutorily barred from receiving any

immigration benefit at the time her husband filed a Petition for Qualifying

Family Member of U-1 Recipient (Form I-918, Supplement A) on January

27, 2014. The respondent therefore fails to establish prima facie eligibility

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for U nonimmigrant status under section 101(a)(15)(U) of the Act, because

at the time her husband filed his petition, the respondent was subject to a

statutory bar from such relief based on her previous filing of a frivolous

asylum application. See Tchuinga v. Gonzales, 454 F.3d 54, 60 (1st Cir.

2006) (citing 8 U.S.C. § 1158(d)(6)).

B.

The respondent’s motion does not demonstrate an exceptional situation

that would warrant the exercise of our discretionary authority to reopen her

proceedings. See Sang Goo Park v. Att’y Gen. of U.S., 846 F.3d 645, 650

(3d Cir. 2017) (citing 8 C.F.R. § 1003.2(a)). In this case, the respondent

seeks to reopen her proceedings based on equities that were acquired while

she remained illegally in the United States after being ordered removed.

Equities established in this manner generally do not constitute such truly

exceptional circumstances as to warrant discretionary reopening. See Matter

of J-J-, 21 I&N Dec. at 984 (citing former 8 C.F.R. § 3.2(a) (1997)).

Nor do we consider the respondent’s claim of ineffective assistance of

counsel to be a valid basis to reopen her removal proceedings and vacate the

frivolousness finding. See 8 C.F.R. § 1003.2(a). Based upon the record

presented, we are not persuaded that the filing deadline should be equitably

tolled because the respondent was prejudiced by the ineffective assistance of

her second counsel resulting from the appellate brief he filed in 2005.

Although the respondent has substantially complied with the procedural

requirements for a claim of ineffective assistance of counsel as outlined in

Matter of Lozada, 19 I&N Dec. 637, 639 (BIA 1988), she did not establish

that the deficiency in the appellate brief filed was prejudicial to her case. Id.

at 640; see also Fadiga v. Att’y Gen. of U.S., 488 F.3d 142, 155 (3d Cir.

2007). The respondent’s previous counsel had already explicitly disputed

the frivolousness finding on her Notice of Appeal (Form EOIR-26).

Contrary to the respondent’s contention, this Board considered both the

adverse credibility and frivolousness findings on the merits. Moreover, a

third counsel filed a timely motion to reconsider, which again set forth

numerous arguments contesting the adverse credibility finding, but the

motion was denied.

On these facts, we find no reasonable likelihood that the outcome of the

respondent’s proceedings would have been different if counsel had

challenged the frivolousness finding in the appellate brief he prepared and

filed for the respondent. See Gui Ying Chen v. Att’y Gen. of U.S., 488

F. App’x 607, 609–10 & n.2 (3d Cir. 2012) (per curiam) (rejecting the alien’s

assertion that the outcome of her asylum claim would have been different but

for counsel’s ineffective assistance in failing to expressly address a

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frivolousness finding on appeal); see also Zheng v. Gonzales, 422 F.3d 98,

107 & n.6 (3d Cir. 2005) (holding that counsel’s failure to file a brief was

not prejudicial because the alien’s motion to reopen showed no reason to

believe that the denial of asylum might otherwise have been reversed).

Therefore, no prejudice has been established. Matter of Lozada, 19 I&N

Dec. at 638-–39; cf. Huai Cao v. Att’y Gen. of U.S., 421 F. App’x 218,

220–21 (3d Cir. 2011) (finding prejudice from ineffective assistance of

counsel for failure to expressly challenge a frivolousness finding on appeal).

Despite the various efforts of the three attorneys who represented the

respondent, she has also not explained why she apparently made no inquiries

regarding the frivolousness finding or took any steps to contest it between

the years 2005 and 2019. This inaction for the nearly 14-year period between

our administratively final order and the filing of her current motion

demonstrates a lack of due diligence. Alzaarir, 639 F.3d at 91.

Even assuming that the time and number bars may be equitably tolled,

the Third Circuit has declined to apply that remedy in the absence of some

unfairness surrounding a previous motion to reopen, because if an alien was

provided “a fair chance to be heard,” there is no equitable reason to permit

another motion. Luntungan v. Att’y Gen. of U.S., 449 F.3d 551, 557–58 (3d

Cir. 2006) (per curiam). Since the respondent’s first motion to reopen gave

her a fair opportunity to allege any impropriety in regard to her application

for asylum, we are unpersuaded that the time and number bars should be

equitably tolled based on her claim of ineffective assistance of counsel.

III. CONCLUSION

For the reasons set forth above, we conclude that the respondent is

ineligible for any immigration benefit under section 208(d)(6) of the Act.

The respondent has not made a persuasive claim for ineffective assistance of

counsel that constitutes exceptional circumstances which clearly undermines

the validity or finality of the Immigration Judge’s frivolousness finding. We

therefore decline to exercise our discretionary authority to reopen these

proceedings as the respondent has not demonstrated prima facie eligibility

for the relief sought. Filja, 447 F.3d at 255 (citing Doherty, 502 U.S. at 323,

and Abudu, 485 U.S. at 105) (other citations omitted). Accordingly, the

respondent’s motion to reopen will be denied.

ORDER: The motion to reopen is denied.

NOTICE: If a respondent is subject to a final order of removal and

willfully fails or refuses to depart from the United States pursuant to the

order, to make timely application in good faith for travel or other documents

necessary to depart the United States, or to present himself or herself at the

time and place required for removal by the Department of Homeland

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Security, or conspires to or takes any action designed to prevent or hamper

the respondent’s departure pursuant to the order of removal, the respondent

shall be subject to a civil monetary penalty of up to $813 for each day the

respondent is in violation. See Section 274D of the Act, 8 U.S.C. § 1324d

(2018); 8 C.F.R. § 280.53(b)(14) (2020).

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