Xiao Ling Chen v. Attorney General of the United States

193 F. App'x 176
CourtCourt of Appeals for the Third Circuit
DecidedSeptember 8, 2006
DocketNo. 05-3404
StatusPublished

This text of 193 F. App'x 176 (Xiao Ling Chen v. Attorney General of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Xiao Ling Chen v. Attorney General of the United States, 193 F. App'x 176 (3d Cir. 2006).

Opinion

OPINION

WEIS, Circuit Judge.

This appeal is from the June 17, 2005 Order of the Board of Immigration Appeals (“BIA”) that affirmed the decision of an Immigration Judge (“IJ”) denying the petitioner’s requests for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). [177]*177Petitioner arrived in the United States in January 1999 and applied for asylum in January 2000. On April 6, 2000, the government filed a Notice to Appear alleging that petitioner was removable pursuant to section 212(a)(6)(A)(i) of the Immigration and Naturalization Act. 8 U.S.C. section 1182(a)(6) (A) (i).

Petitioner is a native and citizen of the People’s Republic of China. She alleges that in 1992 she was forced to undergo an abortion while living in China and that she would be forcibly sterilized if she is returned to that country with her two American-born children.

At a hearing on March 27, 2001, an IJ in New York noted that it appeared that petitioner had entered the United States less than one year before she filed her application for asylum. On September 25, 2001, after the petitioner testified about her entry and after hearing corroborating testimony from a friend of the petitioner’s husband, the New York IJ stated on the record: “All right. I’m going to make a finding that [petitioner] filed [for asylum] within one year [of her entry].”

The case was then transferred to Philadelphia. On November 21, 2002, petitioner appeared before IJ Ferlise. He overturned the New York IJ’s finding that the petitioner’s asylum claim had been filed within a year of her entry in this country. IJ Ferlise stated that the New York IJ’s determination “doesn’t impact on my ... finding.” He thought it was “irresponsible” of the New York IJ to try to “dissect” the case and to “[t]ell me what direction to head. I don’t appreciate that.”

At the end of a hearing on March 12, 2004, IJ Ferlise issued an oral decision in which he concluded that, although “a prior Immigration Judge found that ... [petitioner] had proven that she entered the United States in January 1999 ... [t]he Court is not bound by that decision.” IJ Ferlise also concluded that petitioner lacked credibility and denied the petitioner’s requests for relief.

On June 17, 2005, the BIA affirmed IJ Ferlise’s decision, ruling that petitioner failed to establish by clear and convincing evidence that her application for asylum was timely filed and that, even if the application was timely, petitioner had not presented credible claims in support of her requests for relief. Moreover, the BIA agreed with the IJ that the inconsistencies he had found provided a reasonable basis for rejection of the petitioner’s testimony and that the petitioner’s application for asylum was frivolous.

We do not reach the merits of the petitioner’s claims, but will grant the petition for review because of unsubstantiated rulings by the IJ.

I.

This Court has jurisdiction to review a final order of removal. 8 U.S.C. § 1252(b)(2) & (d). When “the BIA directs us to the opinion and decision of the IJ who originally assessed [the] application, we review the IJ’s opinion.” Shah v. Attorney General, 446 F.3d 429 (3d Cir.2006) (quoting Dia v. Ashcroft, 353 F.3d 228, 240 (3d Cir.2003) (en banc) (internal quotations omitted)). Where an IJ’s

“conclusion is not based on a specific, cogent reason, but, instead, is based on speculation, conjecture, or an otherwise unsupported personal opinion, we will not uphold it because it will not have been supported by such relevant evidence as a reasonable mind would find adequate. In other words, it will not have been supported by substantial evidence.”

Id. (citing Dia, 353 F.3d at 250).

II.

INA section 208 prohibits review of the Attorney General’s decision that an [178]*178alien failed to demonstrate by clear and convincing evidence that the application for asylum had been filed within one year following the date of entry. 8 U.S.C. § 1158(a)(2)-(3); see also Tarrawally v. Ashcroft , 338 F.3d 180, 185 (3d Cir.2003). However, because we conclude that it was improper for IJ Ferlise to disregard the prior determination of the New York IJ that the petitioner’s application was timely, we will review the effect of that ruling.

The Court of Appeals for the Seventh Circuit has concluded that the law of the case doctrine applies in the immigration context and bars an IJ from ignoring the prior decision of another IJ in the same case, absent extraordinary circumstances. Zhang v. Gonzales, 434 F.3d 993 (7th Cir.2006); Ko v. Gonzalez, 421 F.3d 453 (7th Cir.2005); but see Biltmore Forest Broadcasting FM, Inc. v. F.C.C., 321 F.3d 155, 163 (D.C.Cir.2003)(noting, in a non-immigration case, that “the law of the case doctrine is of uncertain force in the context of administrative litigation”); Lockert v. U.S. Dept. of Labor, 867 F.2d 513, 518 (9th Cir.1989)(expressing doubt, in a non-immigration case, that the law of the case doctrine should apply to administrative proceedings).

In Ko, the Court of Appeals for the Seventh Circuit concluded that it was an abuse of discretion for an IJ considering a reopened case to reverse the prior decision to reopen. Id. at 456. The Court of Appeals observed that “[although [the first IJ] should have explained his reasons for granting [the petitioner’s motion to reopen, his decision was not so baseless as to warrant a precipitous and unsupported reversal.” Id. The Court of Appeals further observed, “ ‘[l]itigants have a right to expect that a change in judges will not mean going back to square one.’ ” Id. (quoting Williams v. Commissioner, 1 F.3d 502, 503 (7th Cir.1993)).

The Seventh Circuit reiterated the applicability of the law of the case doctrine to immigration cases in Zhang.

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193 F. App'x 176, Counsel Stack Legal Research, https://law.counselstack.com/opinion/xiao-ling-chen-v-attorney-general-of-the-united-states-ca3-2006.