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Li v. Holder

United States Court of Appeals, Second Circuit

February 21, 2014

FANG LI, Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES; JANET NAPOLITANO, SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY, Respondents

Argued September 2, 2011.

Petition for review of a decision of the Board of Immigration Appeals (" BIA" ) affirming the decision of the Immigration Judge (" IJ" ) to deny petitioner's motion to reopen. The petitioner contends that her final deportation order is invalid because she should have been placed in exclusion proceedings, not deportation proceedings. Because, however, she concedes that she was deportable, we hold that the BIA did not abuse its discretion in affirming the IJ's denial of her motion to reopen.

The petition for review is DENIED.

For Fang Li, Petitioner: ALAN LEE, New York, N.Y.

For Respondents: W. DANIEL SHIEH, Trial Attorney (Tony West, Assistant Attorney General; Francis W. Fraser, Senior Litigation Counsel, on the brief), Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.

Before: KATZMANN, Chief Judge, LIVINGSTON, and CARNEY, Circuit Judges. Chief Judge KATZMANN concurs in a separate opinion.

OPINION

Page 355

Per Curiam:

Petitioner Fang Li, a native and citizen of the People's Republic of China, seeks review of a December 29, 2009 order of the BIA affirming the March 7, 2008 order of Immigration Judge (" IJ" ) Alan L. Page denying her motion to reopen. In re Fang Li, No. A070 896 796 (B.I.A. Dec. 29, 2009), aff'g No. A070 896 796 (Immig. Ct. N.Y. City Mar. 7, 2008). On appeal, Li contends that her prior deportation proceedings are void ab initio because, she argues, exclusion proceedings at the port of entry were the only appropriate procedure for determining whether she could enter into and remain in the United States. Because, however, Li concedes that she is deportable, we conclude that the BIA did not abuse its discretion in affirming the IJ's denial of Li's motion to reopen.

I. Background

Fang Li, a native and citizen of China, entered the United States in 1993 with a false Chinese passport. She attests that after customs officials discovered the false passport upon her arrival at JFK airport, she told them that she came to America to seek asylum. Li was released and given papers that she was told she could use to get a " work card." Li then went to Chinatown and gave these papers to an immigration service agency to obtain a work card.

In June 1993, Li applied for asylum and various other forms of relief based on her claim that she feared persecution under China's " one child" policy. She reports that she was called for an asylum interview that year at which the asylum officer did not ask her about the circumstances of her entry. She was placed into deportation proceedings in November 1996 by an order to show cause charging her with entering the U.S. without a valid visa or entry document, which rendered her deportable. In 1998, she withdrew her application for relief fro deportation and instead requested voluntary departure, thus conceding her deportability. The IJ granted her request for voluntary departure. Li asserts that the IJ presiding over the corresponding hearings never questioned her about the circumstances of her entry.

Although the voluntary departure order became final in November 1998, Li remained in the country. In February 2008, she moved before the immigration court to reopen, claiming that she was eligible to adjust her status based on, inter alia, (1) an I-130 petition filed by her U.S. citizen father and (2) the emotional hardship that her U.S. citizen daughter, who was born in 2000, would suffer if Li were to return to China. The IJ denied this motion as untimely and declined to exercise his authority to reopen sua sponte. In declining to reopen sua sponte, the IJ noted the facts that Li has close family ties in the United States and that her daughter was born after Li's deportation order became final, which in the IJ's view suggested that Li never intended to depart the United States.

Li appealed to the BIA, contending that the equities of her case favored reopening. Significantly to the instant petition for review, in her administrative appeal Li argued for the first time that the ...


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