Aiwei Wan v. Sessions

14-2825
Wang v. Sessions
BIA
Montante, IJ
A076 022 877
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.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 9th day of August, two thousand seventeen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 DENNIS JACOBS,
9 PIERRE N. LEVAL,
10 Circuit Judges.
11 _____________________________________
12
13 YAN HUA WANG,
14 Petitioner,
15
16 v. 14-2825
17 NAC
18
19 JEFFERSON B. SESSIONS III,
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: John Chang, New York, New York.
25
26 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
27 Attorney General; Anthony C. Payne,
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1 Assistant Director; Stuart S.
2 Nickum, Trial Attorney, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review is
10 DENIED.
11 Petitioner Yan Hua Wang, a native and citizen of China,
12 seeks review of a July 21, 2014, decision of the BIA affirming
13 a July 11, 2013, decision of an Immigration Judge (“IJ”) denying
14 her motion to rescind and reopen. In re Yan Hua Wang, No. A076
15 022 877 (B.I.A. July 21, 2014), aff’g No. A076 022 877 (Immig.
16 Ct. Buffalo July 11, 2013). We assume the parties’ familiarity
17 with the underlying facts and procedural history in this case.
18 The applicable standards of review are well established. See
19 Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006); Jian Hui
20 Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008).
21 Motion to Rescind
22 An order of removal entered in absentia “may be rescinded
23 only--(i) upon a motion to reopen filed within 180 days after
24 the date of the order of removal if the alien demonstrates that
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1 the failure to appear was because of exceptional circumstances
2 . . .; or (ii) upon a motion to reopen filed at any time if the
3 alien demonstrates that the alien did not receive notice . .
4 . and the failure to appear was through no fault of the alien.”
5 8 U.S.C. § 1229a(b)(5)(C). Wang’s motion to rescind was
6 subject to the 180-day time limit because she received notice
7 of her hearing but asserted that exceptional circumstances
8 should excuse her failure to appear. See id. It is undisputed
9 that Wang’s 2013 motion to rescind was untimely because the IJ’s
10 in absentia removal order was issued almost fourteen years
11 earlier in 1999. See 8 U.S.C. § 1229a(b)(5)(C)(i).
12 In order to warrant equitable tolling or establish
13 exceptional circumstances, even assuming that prior counsel was
14 ineffective, an alien is required to demonstrate “due
15 diligence” in pursuing his claim during “both the period of time
16 before the ineffective assistance of counsel was or should have
17 been discovered and the period from that point until the motion
18 to reopen is filed.” Rashid v. Mukasey, 533 F.3d 127, 132 (2d
19 Cir. 2008); see also Cekic v. INS, 435 F.3d 167, 170 (2d Cir.
20 2006). Wang failed to demonstrate due diligence. She did not
21 inquire about the status of her proceedings between 1999 and
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1 2005, and then, when she purportedly discovered her former
2 counsel’s ineffective assistance, she took no action to reopen
3 her own proceedings until 2013, and instead pursued asylum only
4 as a derivative beneficiary in her husband’s proceedings. See
5 Jian Hua Wang v. BIA, 508 F.3d 710, 715-16 (2d Cir. 2007)
6 (providing that “petitioner bears the burden of proving that
7 [s]he has exercised due diligence in the period between
8 discovering the ineffectiveness of h[er] representation and
9 filing the motion” and citing several cases in which the Court
10 held that “a petitioner who waits two years or longer to take
11 steps to reopen a proceedings ha[d] failed to demonstrate due
12 diligence”).
13 Motion to Reopen
14 Wang sought to reopen to apply for asylum because she fears
15 persecution in China based on both the birth of her two children
16 in the United States purportedly in violation of China’s
17 population control program, and her conversion to Catholicism.
18 It is undisputed that Wang’s 2013 motion to reopen was untimely
19 because it was filed more than thirteen years after her removal
20 order became final. See 8 U.S.C. § 1229a(c)(7)(C)(i);
21 8 C.F.R. § 1003.2(c)(2). However, the time limitation for
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1 filing a motion to reopen to apply for asylum does not apply
2 if the motion “is based on changed country conditions arising
3 in the country of nationality or the country to which removal
4 has been ordered, if such evidence is material and was not
5 available and would not have been discovered or presented at
6 the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see
7 also 8 C.F.R. § 1003.2(c)(3)(ii).
8 For largely the same reasons as this Court set forth in Jian
9 Hui Shao, we find no error in the agency’s determination that
10 Wang failed to demonstrate either a material change in the
11 enforcement of China’s population control program or her prima
12 facie eligibility for relief based on the birth of her children.
13 See 546 F.3d at 158-72.
14 Insofar as Wang’s motion to reopen was based on her
15 conversion to Catholicism in the United States, the agency did
16 not err in finding that she failed to demonstrate a material
17 change in conditions because her motion to reopen included no
18 evidence of conditions in China at the time of her initial
19 proceedings. See In re S-Y-G-, 24 I. & N. Dec. 247, 251, 253,
20 258 (B.I.A. 2007). Alternatively, the agency did not err in
21 finding that Wang failed to demonstrate her prima facie
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1 eligibility for relief based on her religion because she did
2 not submit evidence that Chinese authorities are aware of, or
3 likely to become aware of, her religious practice. See
4 Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008);
5 see also Jian Hui Shao, 546 F.3d at 168.
6 For the foregoing reasons, the petition for review is
7 DENIED.
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
10
6
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