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Liu v. Lynch

United States Court of Appeals, First Circuit

September 11, 2015

XIN QIANG LIU, Petitioner,
v.
LORETTA E. LYNCH, [*] ATTORNEY GENERAL OF THE UNITED STATES, Respondent

As Amended October 2, 2015.

Page 70

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS.

Joshua Bardavid and Bardavid Law, on brief for petitioner.

Holly M. Smith, Senior Litigation Counsel, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Stuart F. Delery, Assistant Attorney General, Civil Division, and Eric W. Marsteller, Senior Litigation Counsel, Office of Immigration Litigation, on brief for respondent.

Before Torruella, Lipez, and Barron, Circuit Judges.

OPINION

Page 71

TORRUELLA, Circuit Judge.

Petitioner Xin Qiang Liu (" Liu" ), a native and citizen of China, seeks judicial review of the Board of Immigration Appeals' (" BIA" ) order dismissing his appeal from an Immigration Judge's (" IJ" ) denial of his motion to rescind an in absentia removal order and motion to reopen removal proceedings. After careful consideration, we must deny Liu's petition.

I. Background

Liu entered the United States without inspection at St. Thomas, United States Virgin Islands, on or about March 18, 1998. On that same date, the Immigration and Naturalization Service (" INS" ) served Liu with a notice to appear, charging him with removability as an alien present in the United States without having been admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i).[1] INS advised Liu of his rights in Mandarin, and Liu claimed to understand them.

Page 72

While in custody, Liu retained former attorney Robert Porges (" Porges" ) to represent him in the removal proceedings.[2] In a motion for bond determination, Porges indicated that Liu intended to seek political asylum in the United States, and that following his release on bond, Liu would reside with a cousin in Brooklyn, New York. The immigration court scheduled a hearing for June 23, 1998, and served Porges with notice of the hearing.

On June 23, 1998, attorney Víctor Ocampo (" Ocampo" ) from Porges's law firm appeared telephonically on Liu's behalf from his office in New York. Liu, however, failed to appear at the hearing. Ocampo explained that Liu was absent because he was in Texas helping his uncle with an emergency. Unpersuaded by Ocampo's excuse for Liu's absence, the IJ ordered Liu removed in absentia. Liu avers that Porges never informed him of his hearing date, and upon contacting Porges's law firm, he was told his hearing date had already passed. After learning of the removal order, Liu sought assistance from a legal services agency in Manhattan, New York, which prepared a motion to reopen for him.[3] According to Liu, he did not understand English, and simply signed the documents the agency had prepared for him. As a result, Liu's motion was filed as a pro se motion to reopen and to change venue on August 7, 1998. Contrary to the excuse provided by Ocampo, Liu's motion included a doctor's note dated June 22, 1998 (the day before his removal hearing), indicating that he had been seen by a doctor on that date for lower back pain and ...


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