Kong Song Wang v. Holder ( 2009 )

08-2915-ag
Wang v. Holder
BIA
A077 653 387
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 28 th day of December, two thousand nine.
PRESENT:
JON O. NEWMAN,
RALPH K. WINTER,
REENA RAGGI,
Circuit Judges.
_______________________________________
KONG SONG WANG,
Petitioner,
v. 08-2915-ag
NAC
ERIC H. HOLDER, JR., 1 UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
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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.
FOR PETITIONER: Nan Shen, New York, New York.
FOR RESPONDENT: Gregory G. Katsas, Assistant
Attorney General; Blair T. O’Connor,
Assistant Director; Edward Durant,
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 Kong Song Wang, a native and citizen of the
People’s Republic of China, seeks review of the May 14, 2008
order of the BIA denying his motion to reopen, In re Kong Song
Wang, No. A77 653 387 (BIA May 14, 2008). We assume the
parties’ familiarity with the underlying facts and procedural
history in this case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d
Cir. 2005). An alien seeking to reopen removal proceedings
must file a motion to reopen no later than 90 days after the
final administrative decision is rendered in his case. See
8 C.F.R. § 1003.2(c)(2). However, there is no time limit for
filing a motion to reopen if it is “based on changed
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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.” Id.§ 1003.2(c)(3)(ii).
There is no question that Wang’s January 14, 2008 motion
to reopen, filed more than five years after the BIA’s final
order of November 12, 2002, was out of time. Nor do we detect
abuse of discretion in the BIA’s conclusion that Wang failed
to present material and previously unavailable evidence of
changed country conditions, as required to excuse his
untimeliness. Rather, he asserted entitlement to relief based
on (1) the fact that his wife had given birth to a U.S.
citizen child and was pregnant again; and (2) his decision,
since arriving in the United States, to take up the practice
of Falun Gong. These facts evidencing changed personal
circumstances do not warrant the relief Wang seeks. See Wang
v. BIA, 437 F.3d 270, 274 (2d Cir. 2006). We likewise
identify no abuse of discretion in the BIA’s reliance on a
previous adverse credibility finding in declining to credit
either (1) Wang’s two letters purportedly demonstrating
changed circumstances or (2) his professed devotion to Falun
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Gong. See In re S-Y-G-, 24 I. & N. Dec. 247, 250 (BIA 2007).
We conclude that the BIA did not abuse its discretion in
denying Wang’s untimely motion to reopen. See Kaur, 413 F.3d
at 233; 8 C.F.R. § 1003.2(c)(2). Thus, 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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