Filed: Jan. 07, 2010
Latest Update: Mar. 02, 2020
Summary: 08-2477-ag Wang v. Holder BIA A077 008 441 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: 08-2477-ag Wang v. Holder BIA A077 008 441 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 “..
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08-2477-ag
Wang v. Holder
BIA
A077 008 441
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 .
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 7 th day of January, two thousand ten.
PRESENT:
RALPH K. WINTER,
PIERRE N. LEVAL,
REENA RAGGI,
Circuit Judges.
_________________________________________
FENG QING WANG,
Petitioner,
v. 08-2477-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL, *
Respondent.
_________________________________________
FOR PETITIONER: Norman Kwai Wing Wong, New York, New
York.
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
FOR RESPONDENT: Gregory G. Katsas, Assistant
Attorney General; Greg D. Mack,
Senior Litigation Counsel; Hillel R.
Smith, Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Feng Qing Wang, a native and citizen of the
People’s Republic of China, seeks review of an April 30,
2008 order of the BIA denying her motion to reopen. In re
Feng Qing Wang, No. A077 008 441 (B.I.A. Apr. 30, 2008). We
review the BIA’s denial of Wang’s motion to reopen for abuse
of discretion. 1 See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.
2005). In doing so, we assume the parties’ familiarity with
the underlying facts and the record of prior proceedings,
which we reference only to the extent necessary to explain
our decision.
1
Because Wang did not timely petition for review of
the August 8, 2001 order of the BIA dismissing as moot her
appeal from an immigration judge’s denial of asylum,
withholding of removal, and relief under the United Nations
Convention Against Torture, our review is limited to the
BIA’s decision not to reopen Wang’s removal proceedings.
2
There is no dispute that Wang’s February 2008 motion to
reopen was untimely, as the IJ’s order of removal became
final in August 2001. See 8 C.F.R. § 1003.2(c)(2)
(providing that an alien seeking to reopen proceedings may
file one motion to reopen no later than 90 days after the
date on which the final administrative decision was
rendered). The time period for filing a motion to reopen
may be equitably tolled, however, where an alien claims
ineffective assistance of counsel. See Rashid v. Mukasey,
533 F.3d 127, 130 (2d Cir. 2008). To establish entitlement
to such tolling, an alien must demonstrate, inter alia, that
she exercised due diligence in pursuing her claim.
Id. at
131-32 (providing that an alien is required to demonstrate
“due diligence” in pursuing her claims during “both the
period of time before the ineffective assistance of counsel
was or should have been discovered and the period from that
point until the motion to reopen is filed.”).
Because Wang does not claim to have taken any action in
her removal proceedings between the BIA’s August 2001
dismissal of her appeal from the IJ’s order of removal and
her 2007 request for her immigration file, the BIA concluded
that she failed to prove that she exercised due diligence in
pursuing reopening of her removal proceedings. On this
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record, we cannot conclude that the denial of Wang’s motion
to reopen was an abuse of the BIA’s discretion. See Jian
Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007); Cekic v.
INS,
435 F.3d 167, 171-72 (2d Cir. 2006).
Equally unavailing is Wang’s challenge to the BIA’s
finding that she failed to demonstrate changed country
conditions sufficient to excuse the untimely filing of her
motion to reopen. See 8 C.F.R. § 1003.2(c)(3)(ii)
(providing that there is no time limit for filing a motion
to reopen if it is “based on changed circumstances arising
in the country of nationality or in the country to which
deportation has been ordered, if such evidence is material
and was not available and could not have been discovered or
presented at the previous hearing”). While the births of
her U.S. citizen children may constitute a change in
personal circumstances, they do not constitute a change in
country conditions. 2 See Li Yong Zheng v. U.S. Dep’t of
Justice, 416 F.3d 129, 130-31 (2d Cir. 2005); see also Wei
Guang Wang v. BIA,
437 F.3d 270, 273-74 (2d Cir. 2006).
2
As Wang’s brief does not address the BIA’s finding
that she failed to demonstrate changed country conditions
related to her claim based on religion, any challenge to
that finding is deemed waived. See Norton v. Sam’s Club,
145 F.3d 114, 117 (2d Cir. 1998).
4
Furthermore, we have previously reviewed the BIA’s
consideration of documentary evidence similar to that
submitted by Wang and found no error in its conclusion that
such evidence is insufficient to establish either material
changed country conditions or a reasonable possibility of
persecution. See Jian Hui Shao v. Mukasey, 546 F.3d 138,
169-73 (2d Cir. 2008).
Although Wang further submits that her due process
rights were violated by her lack of opportunity to pursue
asylum on account of her fear of persecution as a Catholic,
this argument is also without merit. Wang has no liberty or
property interest in seeking a discretionary grant of leave
to reopen. Cf. Yuen Jin v. Mukasey, 538 F.3d 143, 157 (2d
Cir. 2008) (holding that “an alien who has already filed one
asylum application, been adjudicated removable and ordered
deported, and who has nevertheless remained in the country
illegally for several years, does not have a liberty or
property interest in a discretionary grant of asylum”); see
also Gomez-Palacios v. Holder,
560 F.3d 354, 361 n.2 (5th
Cir. 2009); Iglesias v. Mukasey,
540 F.3d 528, 531 (7th Cir.
2008). In any event, she has received ample process. Prior
to her motion to reopen, Wang filed and had adjudicated an
5
asylum application in which she identified herself as a
Catholic but chose not to seek relief on that ground. See
Yuen Jin, 538 F.3d at 157.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
By:___________________________
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