YINGQING CHEN, AKA Ying Qing Chen v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
YINGQING CHEN, AKA Ying Qing
Chen,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 18-72392
Agency No. A095-448-807
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 16, 2022**
Pasadena, California
Before: NGUYEN and FORREST, Circuit Judges, and FITZWATER,*** District
Judge.
FILED
DEC 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Sidney A. Fitzwater, United States District Judge for the
Northern District of Texas, sitting by designation.

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Yingqing Chen (“Chen”) petitions for review of a decision of the Board of
Immigration Appeals (“BIA”) denying his motion to reopen his removal proceedings.
We have jurisdiction under 8 U.S.C. § 1252. Reviewing the decision for abuse of
discretion, Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir. 2008), we deny the petition.
1. Chen challenges the BIA’s conclusions that his motion to reopen is
untimely, number-barred, and not subject to equitable tolling.
A motion to reopen must be filed “within 90 days of the date of entry of a final
administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(i). In addition, the
movant is limited to one motion to reopen. See 8 U.S.C. § 1229a(c)(7)(A). But
equitable tolling is available when the petitioner establishes that his attorney provided
ineffective assistance at his removal proceedings. To establish entitlement to
equitable tolling, a petitioner must show that his prior counsel’s ineffectiveness
prevented him from timely filing his motion to reopen, he demonstrated due diligence
in discovering counsel’s error, and he complied with the procedural requirements of
In re Lozada, 19 I.& N. Dec. 637 (B.I.A. 1988). Singh v. Holder, 658 F.3d 879, 884
(9th Cir. 2011).
2. The BIA did not err in holding that Chen’s motion to reopen was untimely;
his order of removal was finalized years before he brought the instant motion to
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reopen. And because Chen had filed a prior motion to reopen, the current motion was
also number-barred.
The BIA did not abuse its discretion in finding that Chen failed to “show[] that
he had acted with due diligence” in pursuing his due process claim based on
ineffective assistance of counsel. In 2004, when the immigration judge (“IJ”) found
he was not credible, Chen knew that the basis for the finding was the IJ’s belief that
he was in Belize in May and June 2001 rather than, as he claims, in China. Chen
further knew that his attorney had declined the IJ’s offer to let him address this
apparent inconsistency. Chen could have had the Chinese exit stamp translated at any
time. And although he was able to find replacement counsel to move to reopen on
other grounds in 2009, he waited more than 10 years to find counsel to contest the IJ’s
finding regarding his entry into Belize. “Given the exceedingly long lapse of time
before seeking further legal advice . . . , the BIA appropriately concluded that [Chen]
did not make ‘reasonable efforts to pursue relief,’ and so did not demonstrate the
diligence necessary for equitable tolling.” Bonilla v. Lynch, 840 F.3d 575, 583 (9th
Cir. 2016) (internal citation omitted) (quoting Avagyan v. Holder, 646 F.3d 672, 679
(9th Cir. 2011)).
3. Chen also maintains that a change in the law regarding frivolousness
findings warrants reopening. However, we previously rejected this argument, see
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Chen v. Holder, 331 F. App’x 503, 504 (9th Cir. 2009), and under the law of the case
doctrine, “one panel of an appellate court will not as a general rule reconsider
questions which another panel has decided on a prior appeal in the same case.”
Valenzuela Gallardo v. Barr, 968 F.3d 1053, 1062 (9th Cir. 2020) (quoting Thomas
v. Bible, 983 F.2d 152, 154 (9th Cir. 1993)). Chen does not show that our prior
decision was “clearly erroneous and its enforcement would work a manifest injustice”
or that any of the other exceptions to the doctrine apply. Id. at n.5.
4. Finally, this court is “without jurisdiction to evaluate [a petitioner’s] claim
that the BIA should have reopened his case sua sponte.” Abassi v. INS, 305 F.3d
1028, 1032 (9th Cir. 2002).
PETITION DENIED in part; DISMISSED in part.
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