Filed: Sep. 29, 2010
Latest Update: Feb. 21, 2020
Summary: 09-3909-ag Wang v. Holder BIA A070 897 135 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SU
Summary: 09-3909-ag Wang v. Holder BIA A070 897 135 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUM..
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09-3909-ag
Wang v. Holder
BIA
A070 897 135
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 29 th day of September, two thousand ten.
5
6 PRESENT:
7 RALPH K. WINTER,
8 PIERRE N. LEVAL,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 ZHAO XIN WANG,
14 Petitioner,
15
16 v. 09-3909-ag
17 NAC
18
19 ERIC H. HOLDER, JR., U.S. ATTORNEY
20 GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Meer M.M. Rahman, New York, New
25 York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Russell J.E. Verby, Senior
29 Litigation Counsel; John D.
30 Williams, Trial Attorney, Office of
31 Immigration Litigation, Civil
32 Division, United States Department
33 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Zhao Xin Wang, a native and citizen of the People’s
6 Republic of China, seeks review of an August 31, 2009, order
7 of the BIA denying his motion to reopen his removal
8 proceedings. In re Wang, No. A070 897 135 (B.I.A. Aug. 31,
9 2009). We assume the parties’ familiarity with the
10 underlying facts and procedural history of the case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006). An alien who has been ordered removed may
14 file one motion to reopen, but must do so within 90 days of
15 the final administrative decision. 8 U.S.C. § 1229a(c)(7).
16 Here, the BIA properly denied Wang’s motion to reopen as
17 untimely and number-barred, as it was his sixth motion to
18 reopen and was filed more than six years after his June 2002
19 final order of removal. See id.; 8 C.F.R. § 1003.2(c)(2).
20 Although the time limits on motions to reopen may be
21 excused when the movant demonstrates changed country
22 conditions, 8 U.S.C. § 1229a(c)(7)(C)(ii), the BIA
23 reasonably concluded that Wang had shown only that his
2
1 personal circumstances had changed, as his claim was based
2 on the fact that he joined the Chinese Democracy Party
3 (“CDP”) in 2008. See Wei Guang Wang v. BIA, 437 F.3d 270,
4 274 (2d Cir. 2006) (noting that “apparent gaming of the
5 system in an effort to avoid [removal] is not tolerated by
6 the existing regulatory scheme”); see also Yuen Jin v.
7 Mukasey,
538 F.3d 143, 151-56 (2d Cir. 2008) (holding that
8 the existing legal system does not permit aliens who have
9 been ordered removed “to disregard [those] orders and remain
10 in the United States long enough to change their personal
11 circumstances (e.g., by having children or practicing a
12 persecuted religion) and initiate new proceedings via a new
13 asylum application”). Indeed, Wang fails to point to any
14 evidence in the record establishing how the Chinese
15 government’s current treatment of CDP members differs from
16 their treatment at the time of his merits hearing. See In
17 re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007) (finding
18 that, “[i]n determining whether evidence accompanying a
19 motion to reopen demonstrates a material change in country
20 conditions that would justify reopening, we compare the
21 evidence of country conditions submitted with the motion to
22 those that existed at the time of the merits hearing
23 below”). Therefore, substantial evidence supports the BIA’s
3
1 determination that Wang failed to establish changed country
2 conditions. See 8 C.F.R. § 1003.2(c)(2), (c)(3)(ii); see
3 also Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.
4 2008) (holding that when the BIA considers relevant evidence
5 of country conditions in evaluating a motion to reopen, this
6 Court reviews the BIA’s factual findings under the
7 substantial evidence standard). Accordingly, the BIA did
8 not abuse its discretion by denying Wang’s motion. See Ali,
9 448 F.3d at 517.
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of
12 removal that the Court previously granted in this petition
13 is VACATED, and any pending motion for a stay of removal in
14 this petition is DISMISSED as moot. Any pending request for
15 oral argument in this petition is DENIED in accordance with
16 Federal Rule of Appellate Procedure 34(a)(2), and Second
17 Circuit Local Rule 34.1(b).
18
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
22
4
