Filed: Apr. 05, 2011
Latest Update: Feb. 21, 2020
Summary: 10-2173-ag Wang v. Holder BIA A073 583 567 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: 10-2173-ag Wang v. Holder BIA A073 583 567 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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10-2173-ag
Wang v. Holder
BIA
A073 583 567
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 5th day of April, two thousand eleven.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 ROBERT D. SACK,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 XUE TIAN WANG,
14 Petitioner,
15
16 v. 10-2173-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Lewis Hu, New York, New York.
24
25 FOR RESPONDENTS: Tony West, Assistant Attorney
26 General; James A. Hunolt, Senior
27 Litigation Counsel; Nehal H. Kamani,
28 Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington D.C.
1
2 UPON DUE CONSIDERATION of this petition for review of a
3 Board of Immigration Appeals (“BIA”) decision, it is hereby
4 ORDERED, ADJUDGED, AND DECREED that the petition for review
5 is DENIED.
6 Petitioner Xue Tian Wang, a native and citizen of
7 China, seeks review of the BIA’s May 6, 2010 order denying
8 his motion to reopen his removal proceedings. In re Xue
9 Tian Wang, No. A073 583 567 (B.I.A. May 6, 2010). We assume
10 the parties’ familiarity with the underlying facts and
11 procedural history in this case.
12 Our review is limited to the BIA’s decision not to
13 reopen Wang’s removal proceedings, as Wang did not file a
14 timely petition for review of the underlying order denying
15 his eligibility for relief.1 See Alam v. Gonzales, 438 F.3d
16 184, 186 (2d Cir. 2006). We review the BIA’s denial of a
17 motion to reopen for abuse of discretion. See Ali v.
1
While Wang argues he did not know of his right to
appeal the BIA’s initial decision, failure to inform an
alien of the right to seek appellate review does not, in
and of itself, violate due process. United States v.
Lopez,445 F.3d 90, 96 (2d Cir. 2006). Additionally, the
BIA’s decision to affirm without an opinion neither
violates due process, Yu Sheng Zhang v. U.S. Dep’t of
Justice, 362 F.3d 155, 160 (2d Cir. 2004), nor
constitutes an abuse of discretion, Xusheng Shi v. BIA,
374, F.3d 64, 66 (2d Cir.2004).
2
1 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).
2 The BIA did not abuse its discretion in denying Wang’s
3 motion to reopen as untimely, as he filed it more than seven
4 years after the BIA upheld the immigration judge’s
5 underlying merits decision, and number-barred, as it was his
6 second motion to reopen. 8 C.F.R. § 1003.2(c)(2). Although
7 the time and number limitations do not apply to a motion to
8 reopen seeking to apply for asylum “based on changed
9 circumstances arising in the country of nationality or in
10 the country to which deportation has been ordered, if such
11 evidence is material and was not available and could not
12 have been discovered or presented at the previous hearing,”
13 8 C.F.R. § 1003.2(c)(3)(ii), as the BIA found, Wang’s
14 political activities in the United States constituted a
15 change in personal circumstances, not a change in country
16 conditions, see Yuen Jin v. Mukasey,
538 F.3d 143, 155 (2d
17 Cir. 2008). In addition, substantial evidence supports the
18 BIA’s finding that Wang did not demonstrate a change in
19 country conditions in China, as Wang presented only evidence
20 of longstanding persecution of political dissidents by the
21 Chinese government without any explanation or evidence
22 indicating a change in the treatment of dissidents. See
3
1 Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
2 The BIA was not required to address each individual piece of
3 evidence and Wang has pointed to no evidence which
4 contradicts the BIA’s conclusions. See Wei Guang Wang v.
5 BIA,
437 F.3d 270, 273-74 (2d Cir. 2006).
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, the pending motion
8 for a stay of removal in this petition is DISMISSED as moot.
9
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
12
13
14
4
