Wang v. Lynch , 640 F. App'x 66 ( 2016 )

15-622
Wang v. Lynch
BIA
A079 400 344
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 24th day of February, two thousand sixteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 BARRINGTON D. PARKER,
10 DENNY CHIN,
11 Circuit Judges.
12 _____________________________________
13
14 DONG WANG,
15 Petitioner,
16
17 v. 15-622
18 NAC
19
20 LORETTA E. LYNCH, UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Joshua Bardavid, New York, New York.
26
27 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
28 Assistant Attorney General; Russell
29 J.E. Verby, Senior Litigation
30 Counsel; Laura Halliday Hickein,
31 Trial Attorney, Office of
32 Immigration Litigation, United
1 States Department of Justice,
2 Washington, D.C.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review is
7 DENIED.
8 Petitioner Dong Wang, a native and citizen of China, seeks
9 review of a February 5, 2015, decision of the BIA denying his
10 motion to reopen. In re Dong Wang, No. A079 400 344 (B.I.A.
11 Feb. 5, 2015). We assume the parties’ familiarity with the
12 underlying facts and procedural history in this case.
13 We review the BIA’s denial of a motion to reopen for abuse
14 of discretion, “mindful that motions to reopen ‘are
15 disfavored.’” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006)
16 (quoting INS v. Doherty, 502 U.S. 314, 323 (1992)). An alien
17 seeking to reopen proceedings may file one motion to reopen no
18 later than 90 days after the final administrative decision is
19 rendered. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.
20 § 1003.2(c)(2). These limitations may be excused to
21 accommodate a claim of ineffective assistance of counsel.
22 Rashid v. Mukasey, 533 F.3d 127, 130 (2d Cir. 2008); Jin Bo Zhao
2
1 v. INS, 452 F.3d 154, 159-60 (2d Cir. 2006). The limitations
2 may also be excused if the motion to reopen is “based on changed
3 country conditions arising in the country of nationality or the
4 country to which removal has been ordered, if such evidence is
5 material and was not available and would not have been
6 discovered or presented at the previous proceeding.” 8 U.S.C.
7 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). Wang’s
8 2015 motion was untimely and number barred: it was his second
9 motion to reopen, and he filed it nearly thirteen years after
10 the agency ordered him removed in absentia.
11 Wang argues that the time and numerical limitations should
12 be excused based on his prior counsel’s ineffectiveness. In
13 applying the doctrine of equitable tolling to these
14 limitations, we engage in a two-step inquiry: first, we
15 determine “whether and when the ineffective assistance ‘[was],
16 or should have been, discovered by a reasonable person in the
17 situation.’ Then, petitioner bears the burden of proving that
18 he has exercised due diligence in the period between discovering
19 the ineffectiveness of his representation and filing the motion
20 to reopen.” Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir.
21 2007) (quoting Iavorski v. INS, 232 F.3d 124, 134 (2d Cir.
3
1 2000)). The petitioner must demonstrate “due diligence” in
2 pursuing a claim “during the entire period he . . . seeks to
3 toll.” Rashid, 533 F.3d at 132.
4 Here, the BIA reasonably found that Wang failed to exercise
5 due diligence in discovering his prior counsel’s error. Wang
6 knew about the October 2002 in absentia removal order by
7 November 2002, when first he moved to reopen proceedings. Wang
8 alleges that his attorney did not confess that it was his own
9 mistake, rather than an error on the hearing notice, that caused
10 his office not to notify Wang of the hearing. The BIA, however,
11 had the discretion to conclude that concealment of what actually
12 transpired in 2002 “should have been . . . discovered by a
13 reasonable person in the situation” before 2015. Iavorski, 232
14 F.3d at 134 (rejecting petitioner’s request to toll a two-year
15 period from when he “should have known that he had been a victim
16 of ineffective assistance of counsel”). Nor did Wang’s
17 reference to a 2008 FOIA request demonstrate due diligence.
18 Wang did not submit evidence of that request, and an “attorney’s
19 unsworn statements in a brief are not evidence.” Kulhawik v.
20 Holder, 571 F.3d 296, 298 (2d Cir. 2009). Moreover, the BIA
21 justifiably doubted that a single FOIA request would
4
1 demonstrate due diligence. Wang did not pursue the matter
2 between 2004 (when his motions to reopen and reconsider were
3 denied) and 2008 (when he made the alleged FOIA request), or
4 between 2008 and 2013 (when he hired a new attorney). Rashid,
5 533 F.3d at 132 (requiring due diligence “during the entire
6 period” a petitioner “seeks to toll”). By 2013, nearly eleven
7 years had passed since Wang first learned about the in absentia
8 removal order. “[E]quity is not intended for those who sleep
9 on their rights.” Covey v. Arkansas River Co., 865 F.2d 660,
10 662 (5th Cir. 1989).
11 Wang also argued that a material change in conditions for
12 Christians in China excuses the time and number limitations on
13 his motion to reopen. The BIA was within its discretion reject
14 this argument. The BIA acknowledged that Wang’s documents
15 “generally reference a ‘worsening’ in spots” for Chinese
16 Christians. But the question on a motion to reopen is not
17 whether conditions have worsened, but rather whether they have
18 materially changed since the original merits hearing. 8 U.S.C.
19 § 1229a(c)(7)(C)(ii); Matter of S-Y-G-, 24 I. & N. Dec. 247,
20 253 (BIA 2007) (to determine “whether evidence accompanying a
21 motion to reopen demonstrates a material change,” the agency
5
1 “compare[s] the evidence of country conditions submitted with
2 the motion to those that existed at the time of the merits
3 hearing below”). Wang submitted reports of country conditions
4 in 2012 and 2013, but none as of 2002. The BIA understandably
5 concluded that without evidence of that baseline, it could not
6 draw the necessary comparison.
7 Wang argues that he did not need to submit evidence of 2002
8 conditions because the more recent reports demonstrate that
9 “the situation has worsened.” He quotes that phrase from
10 Poradisova v. Gonzales, 420 F.3d 70, 81 (2d Cir. 2005). But
11 a footnote to that sentence in Poradisova defeats Wang’s
12 argument. It makes clear that the record before the agency in
13 that case included evidence of conditions as of the Poradisovs’
14 merits hearing. Id. at 81 n.9 (“The 2001 State Department
15 Report, in particular, devotes far more space to reports of
16 antisemitic abuses and recounts far more specific incidents
17 than did the 1997 and 1998 Reports introduced with the
18 Poradisovs’ original application.”).
19 For the foregoing reasons, the petition for review is
20 DENIED. As we have completed our review, any stay of removal
21 that the Court previously granted in this petition is VACATED,
6
1 and any pending motion for a stay of removal in this petition
2 is DISMISSED as moot. Any pending request for oral argument
3 in this petition is DENIED in accordance with Federal Rule of
4 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
5 34.1(b).
6 FOR THE COURT:
7 Catherine O=Hagan Wolfe, Clerk
7