Xiu Zhang v. Jefferson Sessions III

NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued April 25, 2018 Decided June 5, 2018 Before DANIEL A. MANION, Circuit Judge DAVID F. HAMILTON, Circuit Judge AMY C. BARRETT, Circuit Judge No. 17‐2758 XIU JUAN ZHANG, Petition for Review of an Order of the Petitioner, Board of Immigration Appeals. v. No. A078 848 829 JEFFERSON B. SESSIONS III, Attorney General of the United States, Respondent. O R D E R Xiu Juan Zhang, a Chinese citizen, petitions for review of the denial of her third motion to reopen her immigration proceedings based on ineffective assistance of counsel dating back to her merits hearing in 2003. The Board of Immigration Appeals denied the motion as untimely and in excess of the permissible number of motions to reopen. The Board did not abuse its discretion in denying the motion because Zhang did not exercise due diligence in raising her claim, so we deny the petition for review. Zhang, a 42‐year‐old woman from Fujian province, came to the United States in 2001. She was detained at O’Hare Airport after presenting a false U.S. passport under a No. 17‐2758 Page 2 false name. Zhang later explained that she was given the passport from “snakeheads” who told her it was a Vietnamese passport. At the airport, Zhang said that she had fled China because the police knew that she recruited people to practice Falun Gong. Zhang was charged with arriving in the United States without valid entry documents, 8 U.S.C. § 1182(a)(7)(A)(i)(I), seeking to enter the United States by fraud or by willful misrepresentation of material facts, § 1182(a)(6)(C)(i), and falsely representing herself to be a citizen of the United States, § 1182(a)(6)(C)(ii). At removal proceedings before Immigration Judge Vinikoor, Zhang’s attorney Nancy Carper conceded inadmissibility and admitted the charges. Carper later filed an asylum application for Zhang based on her involvement with Falun Gong. The IJ denied Zhang’s application, finding her testimony incredible. At some point Carper stopped representing Zhang, who retained new counsel, Gary Yerman. Both Yerman and Zhang asserted by affidavit that Carper told Zhang that she would handle the appeal; Carper, however, never filed a brief. The Board allowed Zhang to file her brief late but ultimately upheld the IJ’s ruling, agreeing with the IJ that significant discrepancies supported an adverse credibility finding and that Zhang failed to corroborate her claim. Since her appeal was dismissed in 2006, Zhang has filed three motions to reopen. The first motion, filed five months after her appeal was dismissed, argued that her circumstances had changed because she had given birth to two children while in the United States (she said she feared she would be forcibly sterilized if returned to China). The Board determined that her claim was precluded by its own case law, as well as this court’s precedent, and denied the motion to reopen. Five years later, represented by attorney Ai Tong, Zhang ...

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