Tuesday, October 26, 2010
From guest blogger, Professor Evelyn Cruz, Arizona State University:
Le Bin Zhu v. Holder No. 10-1042
First Circuit Court of Appeals
Oct 14, 2010
Summary: Mr. Zhu entered the U.S. on June 21, 2001 in Miami, Florida. In a credible fear interview he indicated that his family had disowned him because he converted from Buddhism to Christianity. The asylum officer found him credible and referred his case to an immigration judge (IJ). On June 25, 2001 Mr. Zhu was served with a notice to appear but it did not list a date for hearing. He was released from custody and settled in Boston, Massachusetts.
Upon arriving to Boston, Mr. Zhu hired a lawyer right away. The lawyer informed him that he needed to file a motion to transfer the case from Miami to Boston before filing the asylum application. The attorney also told Mr. Zhu that the motion couldn’t be filed until the case was set for hearing. Two years later the case was finally set for hearing in the Miami court. Mr. Zhu’s attorney filed a motion to transfer the case to Boston and it was granted.
On September 16, 2003 Mr. Zhu and counsel appeared before the IJ and requested a continuance to file an asylum application. The IJ granted the continuance but asked the attorney to brief whether Mr. Zhu’s asylum claim was timed barred since it has been more than a year since Mr. Zhu entered the U.S. At the second hearing Mr. Zhu appeared with new counsel. The prior attorney had not filed the application or the brief. Mr. Zhu however filed an asylum application through new counsel at this hearing.
The IJ found that Mr. Zhu was ineligible for asylum because he had not filed within one year of arrival nor established an exception. Mr. Zhu’s argument, that his prior counsel’s errors had prevented a timely filing, was deemed vague and unsupported by the record. Mr. Zhu appealed to the Board of Immigration Appeals (BIA) but the BIA affirmed the IJ’s findings.
A year after the BIA denial, Mr. Zhu filed a motion to reopen with the BIA. Although motions to reopen must be filed within 90 days of a decision, Mr. Zhu argued that his case qualified for two exceptions—equitable tolling based on ineffective assistance of counsel, and changed country conditions. Mr. Zhu argued that his attorney’s failure to help him file timely, along with the fact that Mr. Zhu now had a child and intended to have additional children, were grounds to permit him to reopen his case. The court denied his motion to reopen and his subsequent petition to reconsider the refusal.
Commentary: Asylum seekers have to be careful with the one year filing deadline. It is very important to file timely. Many immigration judges are not easily persuaded by arguments against strict enforcement of the filing deadline; even in situations as this one where the asylum applicant relied on his/her attorney’s advice.