Wang v. Garland ( 2022 )

16-3422(L)
Wang v. Garland
BIA
Vomacka, IJ
A077 945 274
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
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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 15th day of March, two thousand twenty-two.
PRESENT:
ROSEMARY S. POOLER,
MICHAEL H. PARK,
WILLIAM J. NARDINI,
Circuit Judges.
_____________________________________
TAN YUN WANG,
Petitioner,
v. 16-3422 (L),
19-3655 (Con)
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL, 1
Respondent.
_____________________________________
FOR PETITIONER: John Son Yong, New York, N.Y.
FOR RESPONDENT: Jeffrey Bossert Clark, Acting
Assistant Attorney General; Song
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Merrick B. Garland is automatically
substituted as Respondent.
Park, Acting Assistant Director;
Greg D. Mack, Senior Litigation
Counsel, Office of Immigration
Litigation, United States
Department of Justice, Washington,
DC.
UPON DUE CONSIDERATION of these consolidated petitions
for review of decisions of the Board of Immigration Appeals
(“BIA”), it is hereby ORDERED, ADJUDGED, AND DECREED that the
lead petition is DENIED and the consolidated petition is
GRANTED.
Tan Yun Wang, a native and citizen of the People’s
Republic of China, seeks review of both a September 21, 2016,
decision of the BIA affirming an August 3, 2015, decision of
an Immigration Judge (“IJ”) denying Wang’s motion to rescind
an in absentia removal order and reopen removal proceedings,
and an October 28, 2019, BIA decision denying Wang’s
subsequent motion to reopen. In re Tan Yun Wang, No. A 077
945 274 (B.I.A. Sept. 21, 2016), aff’g A077 945 274 (Immig.
Ct. N.Y. City Aug. 3, 2015); In re Tan Yun Wang, No. A077 945
274 (B.I.A. Oct. 28, 2019). We assume the parties’
familiarity with the underlying facts and procedural history.
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I. Lead Case: Motion to Rescind and Reopen
We have reviewed both the IJ’s and BIA’s decisions
denying the motion to rescind and reopen. See Wangchuck v.
Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006).
When the agency orders an alien removed in absentia, a motion
to reopen is governed by different rules depending on whether
the movant seeks reopening to rescind the order or to present
new evidence of eligibility for relief from removal. See
Song Jin Wu v. INS, 436 F.3d 157, 163 (2d Cir. 2006); In re
M-S-, 22 I. & N. Dec. 349, 353–55 (B.I.A. 1998). Wang sought
to both rescind his in absentia removal order for lack of
notice and to reopen proceedings to apply for asylum based on
his conversion to Catholicism. We thus treat the motion as
comprising distinct motions to rescind and to reopen. Alrefae
v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006); Maghradze v.
Gonzales, 462 F.3d 150, 152 n.1 (2d Cir. 2006). As set forth
the below, we find no abuse of discretion in the agency’s
denial of either relief. See Alrefae, 471 F.3d at 357(reviewing motion to rescind under same abuse of discretion
standard applicable to motion to reopen); see Jian Hui Shao
v. Mukasey, 546 F.3d 138, 168–69 (2d Cir. 2008) (reviewing
country conditions determination for substantial evidence).
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A. Motion to Rescind
There are two grounds to rescind an in absentia removal
order: (1) lack of notice of the hearing, and (2) exceptional
circumstances for failure to appear if rescission is
requested within 180 days. 8 U.S.C. § 1229a(b)(5)(C);
8 C.F.R. § 1003.23(b)(4)(ii). Wang relies on both grounds,
asserting that he did not have notice of his hearing and that
ineffective assistance of counsel was an exceptional
circumstance excusing his failure to appear. The agency did
not abuse its discretion in finding that Wang had notice of
his December 2000 hearing because the record reflects that,
after an initial mailing to a wrong address, the immigration
court mailed a hearing notice to the address that Wang gave
in his bond proceedings. The notice to appear warned Wang
that he could be removed in absentia if he did not appear at
his hearing and instructed him to inform the immigration court
of any address change. Accordingly, absent evidence that he
informed the immigration court of his address in Vermont where
he allegedly moved upon his release from detention, the BIA
did not abuse its discretion in declining to rescind the
removal order based on lack of notice. See Maghradze, 462
F.3d at 154 (upholding BIA’s determination “that aliens who
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fail to provide a written update of a change of address are
deemed to have constructively received notice”).
Second, absent lack of notice, Wang was required to show
that his failure to appear resulted from exceptional
circumstances and file his motion to rescind within 180 days
of his in absentia order. See 8 U.S.C. § 1229a(b)(5)(C);
Song Jin Wu, 436 F.3d at 162. The agency did not abuse its
discretion in declining to rescind on this basis because Wang
moved to rescind more than 13 years after he was removed in
absentia in December 2000, and did not show that he merited
equitable tolling based on ineffective assistance of counsel.
To receive equitable tolling, an alien must demonstrate that
he diligently pursued his ineffective assistance claim during
the entire period he seeks to toll. Rashid v. Mukasey, 533
F.3d 127, 132 (2d Cir. 2008); Iavorski v. U.S. INS, 232 F.3d
124, 134 (2d Cir. 2000). Wang conceded that he knew he had
reason to question the quality of his attorney’s
representation as early as September 2000, and knew as early
as 2001 that he had been ordered removed in absentia; but he
did not move to reopen until March 2014. He argues that his
seeking of advice from various law firms during this period
demonstrates due diligence, but, as the IJ found, he presented
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no corroboration. His affidavit indicates that he did not
pursue reopening because those attorneys told him he was
likely not eligible for relief from removal. Accordingly,
the agency did not err in finding that Wang failed to act
with due diligence in seeking reopening. See Iavorski, 232
F.3d at 134 (petitioner who waited two years after adverse
BIA decision did not exercise due diligence); Rashid, 533
F.3d at 132–33 (alien who waited 18 months did not demonstrate
due diligence); see also Jian Hua Wang v. BIA, 508 F.3d 710,
715 (2d Cir. 2007) (recognizing that no period is unreasonable
per se, but citing several cases where “petitioner who
wait[ed] two years or longer to take steps to reopen a
proceedings ha[d] failed to demonstrate due diligence”).
B. Motion to Reopen for Asylum
Wang also moved to reopen to apply for asylum based on
his 2012 conversion to Catholicism and the Chinese
authorities’ alleged December 2013 discovery of religious
materials that he sent to his sister in China. This motion
was untimely because it was filed more than 90 days after the
removal order. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
§ 1003.23(b)(1). The 90-day time limit does not apply if
reopening is sought to apply for asylum and the motion is
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“based on changed country conditions arising in the country
of nationality or the country to which removal has 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. § 1003.23(b)(4)(i). The agency did not abuse
its discretion in declining to reopen on this basis. Wang’s
conversion to Catholicism is a change in personal
circumstances that does not excuse the time limitation on his
motion to reopen. See Wei Guang Wang v. BIA, 437 F.3d 270,
273–74 (2d Cir. 2006) (making clear that the limitations on
motions to reopen may not be suspended because of a “self-
induced change in personal circumstances” that is “entirely
of [the applicant’s] own making after being ordered to leave
the United States”).
In addition, Wang did not otherwise show a change in
conditions in China. Even assuming that the Chinese
authorities’ alleged discovery of religious materials could
constitute a change in conditions in China, the IJ rejected
that claim as not credible and uncorroborated and Wang did
not challenge those findings on appeal to the BIA. See Lin
Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir.
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2006) (holding that petitioner generally is required to raise
all issues before the BIA). Were we to reach the issue, we
would find no error in the IJ’s decision not to credit Wang’s
sister’s affidavit and an unauthenticated village committee
notice. See Y.C. v. Holder, 741 F.3d 324, 332, 334 (2d Cir.
2013) (holding that we generally defer to agency’s weighing
of evidence and upholding BIA’s refusal to credit letter from
applicant’s spouse that Chinese authorities had discovered
his political activities in the United States).
To the extent that Wang argued that conditions have
worsened for Catholics in China, he discussed events in 2013
and did not make the necessary comparison to conditions before
his 2000 removal order. See In re S-Y-G-, 24 I. & N. Dec.
247, 253 (B.I.A. 2007) (“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.”). Moreover, the country
conditions evidence—a 2012 U.S. State Department report—
supports the agency’s conclusion that there was continued
religious repression, not a material worsening of conditions.
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II. Consolidated Case
In his second motion to reopen, Wang argued that his
notice to appear (“NTA”) was defective because it did not
provide the date and time of his hearing and thus did not
stop his accrual of presence for cancellation of removal and
did not vest jurisdiction with the IJ. We grant this petition
and remand to the BIA. While Wang’s jurisdictional argument
lacks merit, the BIA should reconsider whether to reopen for
Wang to apply for cancellation of removal.
A nonpermanent resident, like Wang, may have his removal
cancelled if, among other requirements, he can show 10 years
of continuous presence in the United States. 8 U.S.C.
§ 1229b(b)(1)(A). In Pereira v. Sessions, the Supreme Court
held that an NTA must include a hearing time and place to
trigger the stop-time rule, which cuts off a noncitizen’s
accrual of physical presence or residence for purposes of
qualifying for cancellation of removal, see 8 U.S.C.
§ 1229b(a), (b), (d)(1). In rejecting Wang’s motion, the BIA
reasoned that the subsequent hearing notice provided the
missing information and stopped the accrual of presence. The
Supreme Court has since rejected the BIA’s position, holding
that an NTA that does not contain a hearing date and time as
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required by Pereira is not cured for purposes of the stop-
time rule by a subsequent notice of hearing that provides the
missing information. See Niz-Chavez v. Garland, 141 S.Ct.
1474, 1479, 1481-82 (2021) (requiring the Government to issue
a single NTA containing all statutorily required information
rather than providing the information in separate documents).
Accordingly, we remand on this basis because the BIA
“misperceived the legal background and thought, incorrectly,
that a reopening would necessarily fail.” Mahmood v. Holder,
570 F.3d 466, 469 (2d Cir. 2009).
Wang’s additional argument that the NTA was inadequate
to vest jurisdiction in the immigration court is foreclosed
by Banegas Gomez v. Barr, which held that that Pereira does
not “void jurisdiction in cases in which an NTA omits a
hearing time or place.” 922 F.3d 101, 110 (2d Cir. 2019)
(emphasis omitted). In contrast to the statute governing the
stop-time rule, the regulation vesting jurisdiction does not
require an NTA to specify the time and date of the initial
hearing, “so long as a notice of hearing specifying this
information is later sent to the alien.” Id. at 112
(quotation marks omitted). The Supreme Court’s ruling in
Niz-Chavez does not alter this conclusion.
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For the foregoing reasons, the lead petition for review
is DENIED and the consolidated petition is GRANTED, the
October 28, 2019, BIA decision is VACATED, and the case is
REMANDED for reconsideration of Wang’s motion to reopen to
apply for cancellation of removal.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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