Wang v. Secretary Homeland , 178 F. App'x 103 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
4-26-2006
Wang v. Secretary Homeland
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4707
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"Wang v. Secretary Homeland" (2006). 2006 Decisions. Paper 1219.
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-4707
MING SHAN WANG,
Petitioner
v.
ATTORNEY GENERAL
UNITED STATES OF AMERICA,
Respondent
Petition for Review of an Order
of the Board of Immigration Appeals
(INS No. A79-629-739)
Immigration Judge: Hon. Henry S. Dogin
Submitted Under Third Circuit LAR 34.1(a)
April 17, 2006
Before: SLOVITER, AMBRO, and MICHEL*, Circuit Judges
(Filed: April 26, 2006)
OPINION
*
The Honorable Paul R. Michel, Chief Judge, United States
Court of Appeals for the Federal Circuit, sitting by designation.
SLOVITER, Circuit Judge.
Petitioner Ming Shan Wang (“Wang”), a native and citizen of China, petitions for
review of a final order by the Board of Immigration Appeals (“BIA” or “Board”), which
was entered on November 26, 2004, affirming the immigration judge’s (“IJ”) denial of
Wang’s motion to reopen her removal proceedings.
I.
Wang arrived in the United States in 2002 without valid entry documents and was
placed in removal proceedings. After removability was established in a hearing before an
IJ, Wang sought relief in the forms of asylum, withholding of removal, and Article 3 of
the Convention Against Torture (“CAT”). At her asylum hearing, Wang argued that she
has been persecuted and has a well-founded fear of persecution by the Chinese
government based on her relationship with her grandmother, who is a Falun Gong
practitioner. She maintained that although she did not practice Falun Gong herself, she
was beaten and detained by the police, who accused her of being a member. The IJ
denied Wang’s applications because he found her testimony incredible and determined
that she had failed to provide evidence that sufficiently supported her claim of past and
future persecution.
Wang did not appeal her removal order to the BIA. Instead, on March 8, 2004, she
filed a motion to reopen her removal proceedings or, in the alternative, to vacate and
reinstate the Court’s previous decision, which would afford her a new window of
opportunity to appeal the December 19, 2003 removal order within thirty days thereof. In
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support of her motion to reopen, Wang submitted an affidavit claiming that she received
information one week after the IJ denied her applications for relief that Chinese
government officials have been pursuing her because she failed to abide by the terms of
her release from detention in China. The IJ denied the motion because he was not
satisfied that the information could not have been discovered before or presented at
Wang’s removal hearing. The IJ stated that even if the information contained in the
affidavit had been presented at Wang’s initial hearing, he would have rendered the same
decision because he had previously made an adverse credibility finding and nothing in the
“bare and unsupported assertion on [Wang’s] affidavit” rehabilitated Wang’s “incredible
testimony.” App. at 9. The BIA adopted and affirmed the IJ’s decision, and this petition
for review followed.
II.
DISCUSSION
A. Adverse Credibility Finding
Wang first claims that the IJ abused his discretion in finding her to be an incredible
witness, a finding we ordinarily review for substantial evidence. See Butt v. Gonzales,
429 F.3d 430, 433 (3d Cir. 2005). We need not conduct such an inquiry here because we
lack jurisdiction to do so. Wang failed to exhaust her available administrative remedies
by failing to appeal the IJ’s adverse credibility determination to the BIA. See 8 U.S.C.
§1252(d)(1); Zheng v. Gonzales, 422 F.3d 98, 107-108 (3d Cir. 2005) (“The failure to
exhaust this claim before the BIA ‘bars consideration of particular questions not raised in
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an appeal to the Board.’”) (quoting Alleyne v. INS, 879 F.2d 1177, 1182 (3d Cir. 1989)).
Accordingly, because Wang failed to present this claim to the BIA, it is unexhausted, and
we must dismiss Wang’s petition for review of the IJ’s adverse credibility finding for lack
of jurisdiction.
B. Motion to Reopen
Wang also alleges that the BIA abused its discretion by failing to attach sufficient
weight to Wang’s above-mentioned affidavit and affirming the denial of Wang’s motion
to reopen. We have exclusive jurisdiction to review the BIA’s affirmance of a denial of a
motion to reopen removal proceedings. See 8 U.S.C. §1252(a)(1). Generally, motions to
reopen are granted only under compelling circumstances. Guo v. Ashcroft, 386 F.3d 556,
561 (3d Cir. 2004). As the United States Supreme Court has explained:
The granting of a motion to reopen is . . . discretionary[.]
[T]he Attorney General has “broad discretion” to grant or
deny such motions. Motions for reopening of immigration
proceedings are disfavored for the same reasons as are
petitions for rehearing and motions for a new trial on the basis
of newly discovered evidence. This is especially true in a
deportation proceeding, where, as a general matter, every
delay works to the advantage of the deportable alien who
wishes merely to remain in the United States.
INS v. Doherty, 502 U.S. 314, 323 (1992) (citations omitted).
In light of these considerations, our review is highly deferential: we review the
denial of a motion to reopen for abuse of discretion. Id. “Discretionary decisions of the
BIA will not be disturbed unless they are found to be arbitrary, irrational, or contrary to
law.” Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994) (quotation marks omitted). Because
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the BIA summarily affirmed the IJ’s decision without opinion, we review the findings and
conclusions of the IJ. See Partyka v. Att’y Gen., 417 F.3d 408, 411 (3d Cir. 2005).
A motion to reopen removal proceedings must “state the new facts that will be
proven at a hearing to be held if the motion is granted, and shall be supported by
affidavits or other evidentiary material.” 8 U.S.C. §1229a(c)(7)(B). A motion to reopen
will not be granted unless the IJ is satisfied that the new evidence being offered is
material and was not available and could not have been discovered or presented at the
earlier hearing. See 8 C.F.R. §1003.23(b)(3).
In support of her motion to reopen, Wang submits an affidavit stating that,
subsequent to her former hearing, she was informed that Chinese government officials
were searching for her for violating her release from detention. The IJ concluded that
Wang failed to demonstrate that the evidence she sought to produce was not available and
could not have been discovered or presented at her prior hearing. Although Wang’s
affidavit states that she received the information from her mother one week after her
hearing, the Government notes that the affidavit fails to demonstrate how Wang received
the information, when the Chinese government officials began looking for Wang, or that
the information was not available earlier.
Because the basis for the IJ’s adverse credibility assessment was directly related to
Wang’s motion to reopen, the IJ did not abuse its discretion by taking that assessment into
consideration. It follows that the BIA’s denial of Wang’s motion to reopen was not
arbitrary, capricious, or contrary to law.
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C. BIA’s Summary Affirmance
Finally, Wang appears to challenge the BIA’s summary affirmance of the IJ’s
decision as an abuse of the BIA’s discretion. However, Wang’s objections to the
summary affirmance procedure are not persuasive. We have previously held that the
BIA’s use of this summary affirmance procedure is proper and that it neither violates due
process nor runs afoul of the Immigration and Nationality Act. Dia v. Ashcroft, 353 F.3d
228, 238-239 (3d Cir. 2003) (en banc). Accordingly, this argument is without merit.
III.
CONCLUSION
For the foregoing reasons, we will dismiss for lack of jurisdiction Wang’s petition
for review of the IJ’s adverse credibility determination and deny Wang’s petition for
review.
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