Fang v. Wilkinson ( 2021 )

18-2691
Fang v. Wilkinson
BIA
Lamb, IJ
A073 552 824
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 TO 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 Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 19th day of February, two thousand twenty-one.
PRESENT:
ROSEMARY S. POOLER,
ROBERT D. SACK,
MICHAEL H. PARK,
Circuit Judges.
_____________________________________
XIN JING FANG,
Petitioner,
v. 18-2691
NAC
ROBERT M.WILKINSON, ACTING
UNITED STATES ATTORNEY GENERAL, 1
Respondent.
_____________________________________
FOR PETITIONER: John Chang, Esq., New York, NY.
FOR RESPONDENT: Jeffrey Bossert Clark, Acting
Assistant Attorney General; Holly
1
Pursuant to Federal Rule of Appellate Procedure 43(c)((2), Robert M. Wilkinson is automatically substituted as
Respondent.
M. Smith, Kohsei Ugumori, Senior
Litigation Counsel, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
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 Xin Jing Fang, a native and citizen of the
People’s Republic of China, seeks review of an August 16,
2018, decision of the BIA affirming an August 22, 2017,
decision of an Immigration Judge (“IJ”) denying Fang’s
untimely motion to reopen. In re Xin Jing Fang, No. A 073
552 824 (B.I.A. Aug. 16, 2018), aff’g No. A 073 552 824
(Immig. Ct. N.Y. City Sept. 18, 2017). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
We review the denial of a motion to reopen for abuse of
discretion and the agency’s determination of country
conditions for substantial evidence. See Jian Hui Shao v.
Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008). It is
undisputed that Fang’s 2014 motion to reopen was untimely
because she filed it more than 18 years after she accepted a
2
final order of voluntary departure in 1996. See 8 U.S.C.
§ 1229a(c)(7)(C)(i) (setting 90-day deadline for motions to
reopen); 8 C.F.R. §§ 1003.2(c)(2), 1003.23(b)(1) (same).
While Fang argues for exceptions to this deadline based on
ineffective assistance of counsel and changed conditions in
China, we find no error in the BIA’s conclusion that she did
not satisfy either exception.
Ineffective assistance of counsel may equitably toll the
time limitation on a motion to reopen if the movant has
exercised “due diligence” in pursuing the claim. See Rashid
v. Mukasey, 533 F.3d 127, 130-31 (2d Cir. 2008). The movant
“is required to exercise due diligence both before and after
[s]he has or should have discovered ineffective assistance of
counsel.” Id. at 132. “[T]here is no period of time which
. . . is per se unreasonable, and, therefore, disqualifies a
petitioner from equitable tolling–or, for that matter, any
period of time that is per se reasonable.” Jian Hua Wang v.
BIA, 508 F.3d 710, 715 (2d Cir. 2007).
The BIA did not abuse its discretion in concluding that
Fang failed to establish due diligence throughout the entire
18-year period she sought to toll. See Ke Zhen Zhao v. U.S.
3
Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (“An abuse
of discretion may be found . . . where the Board’s decision
provides no rational explanation, inexplicably departs from
established policies, is devoid of any reasoning, or contains
only summary or conclusory statements; that is to say, where
the Board has acted in an arbitrary or capricious manner.”
(citations omitted)). Fang claimed to have consulted at
least ten law offices from 1997 to 2014; however, she
submitted nothing to corroborate her statement that she had
these consultations, and she stated that the lawyers declined
to assist her but gave no detail about what information she
gave them or what was discussed. Given Fang’s minimal
evidence and detail and the length of time she sought to toll,
the BIA reasonably determined that Fang had not shown
diligence. See Jian Hua Wang, 508 F.3d at 715 (observing
that reasonableness of delay must be assessed “under the
circumstances”).
The time limitation for filing a motion to reopen does
not apply if reopening is sought to apply for asylum and the
motion “is based on changed country conditions arising in the
country of nationality or the country to which removal has
4
been ordered, if such evidence is material and was not
available and would not have been discovered or presented at
the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii);
see also 8 C.F.R. §§ 1003.2(c)(3)(ii), 1003.23(b)(4). The
agency did not err in finding that Fang failed to demonstrate
a change in conditions because her motion and country
conditions evidence cited only one incident in China—the 2014
demolition of a large, government-sponsored church. “In
determining whether evidence accompanying a motion to reopen
demonstrates a material change in country conditions that
would justify reopening, [the agency] compare[s] the evidence
of country conditions submitted with the motion to those that
existed at the time of the merits hearing below.” In re S-
Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007). Fang did not
submit any evidence of the conditions for Christians in China
at the time of her 1996 hearing before the IJ, and the BIA
reasonably concluded that the demolition of one church was
not sufficient to establish a change particularly where Fang
did not allege that she intended to attend a church of similar
size or prominence. See id.; see also Jian Hui Shao, 546
F.3d at 157–58 (“[W]hen a petitioner bears the burden of
5
proof, his failure to adduce evidence can itself constitute
the ‘substantial evidence’ necessary to support the agency’s
challenged decision.”).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
6