Xiu Qin Wang v. Holder , 391 F. App'x 976 ( 2010 )

08-0282-ag (L); 09-3416-ag (Con)
Wang v. Holder
BIA
Bukszpan, IJ
A095 850 961
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 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
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 8 th day of September, two thousand ten.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 JOSÉ A. CABRANES,
9 PETER W. HALL,
10 Circuit Judges.
11 _______________________________________
12
13 XIU QIN WANG,
14 Petitioner,
15
16 v. 08-0282-ag (L);
17 09-3416-ag (Con)
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Richard Tarzia, Belle Mead, New
25 Jersey.
26
27 FOR RESPONDENT: Gregory G Katsas, Assistant Attorney
28 General, James E. Grimes, Senior
29 Litigation Counsel, Lindsay B.
30 Glauner, Trial Attorney, Office of
31 Immigration Litigation, Civil
32 Division, United States Department
33 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Xiu Qin Wang, a native and citizen of China,
6 seeks review of: (1) the December 26, 2007, decision of the
7 BIA, affirming the July 25, 2006, decision of Immigration
8 Judge (“IJ”) Joanna Miller Bukszpan, In re Xiu Qin Wang, No.
9 A095 850 961 (B.I.A. Dec. 26, 2007), aff’g No. A095 850 961
10 (Immig. Ct. N.Y. City July 25, 2006); and (2) the July 15,
11 2009, decision of the BIA denying her motion to reopen and
12 remand. In re Xiu Qin Wang, No. A095 850 961 (B.I.A. July
13 15, 2009). We assume the parties’ familiarity with the
14 underlying facts and procedural history in this case.
15 I. Dkt No. 08-0282-ag (L)
16 A. BIA’s Denial of Wang’s Motion to Accept Untimely
17 Brief
18 As an initial matter, contrary to Wang’s argument, the
19 BIA did not err in denying her motion to accept her untimely
20 brief. Although Wang argues that the untimeliness of her
21 brief was due to an error by the company she used for
22 delivery, as the BIA noted, “it recommends that parties file
2
1 as far in advance of [a filing] deadline as possible because
2 short delays in delivery are to be expected and do not
3 warrant consideration of an untimely appeal on
4 certification.” See Matter of Vladimir Liadov, 23 I & N
5 Dec. 990 (BIA 2006) (noting that in two sections in the BIA
6 Practice Manual, it “specifically cautions that use of an
7 overnight delivery service does not mean that failing to
8 meet filing deadlines will be excused”)). Moreover, under
9 8 C.F.R. § 1003.3(c)(1), the BIA has the discretion to
10 decide whether to consider briefs filed out of time. See
11 also Dedji v. Mukasey, 525 F.3d 187, 192 (2d Cir. 2008)
12 (holding that “IJs are accorded wide latitude in calendar
13 management, and we will not micromanage their scheduling
14 decisions any more than when we review such decisions by
15 district judges.” (citing Morgan v. Gonzales, 445 F.3d 549,
16 551 (2d Cir. 2006))).
17 B. Asylum and Withholding of Removal
18 Under the circumstances of this case, we review the
19 decision of the IJ as supplemented by the BIA. See Yan Chen
20 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
21 applicable standards of review are well-established.
22 See 8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d
31 90, 95 (2d Cir. 2008); Salimatou Bah v. Mukasey, 529 F.3d
2 99, 110 (2d Cir. 2008).
3 1. Asylum-Discretionary Denial 1
4 The IJ denied Wang’s application for asylum as a matter
5 of discretion. A discretionary decision to grant or deny
6 asylum will be “conclusive unless manifestly contrary to the
7 law and an abuse of discretion.” Wu Zheng Huang v. INS, 436
8 F.3d 89, 96 (2d Cir. 2006) (quoting 8 U.S.C.
9 § 1252(b)(4)(D)). The agency acts within its “discretion to
10 deny asylum where the ‘seriousness of [a petitioner’s]
11 criminal conduct’ . . . [i]s not counterbalanced by any
12 mitigating circumstances or witnesses.” Id. at 100 n.12
13 (quoting Kong Min Jian v. INS, 28 F.3d 256, 258 (2d Cir.
14 2006)). In considering mitigating factors, the agency
15 should consider past persecution, the danger of future
16 persecution, a concession of removability, and family
17 reunification. Wu Zheng Huang, 436 F.3d at 100-01.
18 Here, contrary to Wang’s argument, the IJ did not abuse
19 its discretion in finding that, although Wang’s two U.S.
1
As we find that the agency did not err in its
discretionary denial of asylum, we decline to reach the
agency’s finding that Wang’s subjective fear of
persecution was undermined by the fact that she sent one
of her children to stay in China.
4
1 citizen children were “very high positive factors” in
2 support of a favorable exercise of discretion, those
3 positive factors did not outweigh her “egregious” actions,
4 which included: (1) entering the U.S. to marry someone who
5 had already been ordered excluded; (2) filing “misleading”
6 tax returns; (3) receiving “questionable” Medicaid benefits;
7 (4) submitting “problematic” supporting documentation.
8 Moreover, Wang points to nothing in the record to support
9 her argument that the IJ erred in relying on these negative
10 discretionary factors. Accordingly, because the IJ’s
11 findings were not “arbitrary or capricious,” she did not
12 abuse her discretion in denying Wang’s asylum application as
13 a matter of discretion.
14 2. Withholding of Removal
15 The IJ also did not err in denying Wang’s application
16 for withholding of removal because the background evidence
17 that she submitted did not demonstrate that she would more
18 likely than not be sterilized. Contrary to Wang’s argument
19 that the IJ erred in denying her application for withholding
20 of removal because the IJ also found that the evidence
21 “shows it is possible that [Wang] would be persecuted
22 against her will,” Wang was required to show that it was
5
1 “more likely than not” that she would be sterilized, rather
2 than a mere possibility of sterilization. See 8 C.F.R.
3 § 208.16(b)(1); See Ramsameachire v. Ashcroft, 357 F.3d 169,
4 178 (2d Cir. 2004). Moreover, in Matter of J-W-S-, the BIA
5 held that much of the evidence that Wang submitted–the 2005
6 Department of State Country Report and the Aird
7 affidavit–was insufficient to demonstrate an objectively
8 reasonable fear of persecution for violating the family
9 planning policy. 24 I & N Dec.185, 192 (2007).
10 Additionally, Wang did not present any evidence of similarly
11 situated individuals in China who had been persecuted for
12 violating the family planning policy in the same manner that
13 she did. Therefore, in the absence of support in the record
14 for Wang’s assertion that she would be persecuted, her fear,
15 even if subjectively genuine, is not objectively reasonable.
16 See Ramsameachire, 357 F.3d at 178; Jian Xing Huang v. INS,
17 421 F.3d 125, 128 (2d Cir. 2005) (explaining that “objective
18 reasonableness entails a showing that a reasonable person in
19 the petitioner’s circumstances would fear persecution if
20 returned to his native country”); Yan Fang Zhang v.
21 Gonzales, 452 F.3d 167, 173 (2d Cir. 2006) (noting that
22 although the petitioner established her subjective fear, she
6
1 was required to adduce some “other proof or objective facts”
2 to demonstrate that her fear was objectively reasonable).
3 Thus, because Wang’s fear was not objectively reasonable,
4 the agency did not err in finding that she failed to
5 demonstrate that it was more likely than not that she would
6 be sterilized if her returned to China. See 8 C.F.R.
7 § 208.16(b)(1); Ramsameachire, 357 F.3d at 178.
8 II. Dkt No. 09-3416-ag (Con)
9 We review the BIA’s denial of a motion to reopen and
10 remand for abuse of discretion. Ali v. Gonzales, 448 F.3d
11 515, 517 (2d Cir. 2006).
12 There is no dispute that Wang’s motion to reopen and
13 remand was untimely. See 8 C.F.R. § 1003.2(c)(2) (providing
14 that an alien seeking to reopen proceedings may file one
15 motion to reopen no later than 90 days after the date on
16 which the final administrative decision was rendered).
17 However, there are no time limitations when a motion to
18 reopen is “based on changed circumstances arising in the
19 country of nationality or in the country to which
20 deportation has been ordered, if such evidence is material
21 and was not available and could not have been discovered or
22 presented at the previous hearing.” 8 C.F.R.
7
1 § 1003.2(c)(3)(ii).
2 The BIA did not abuse its discretion by denying Wang’s
3 motion to reopen and remand because it reasonably found that
4 she failed to submit evidence of changed country conditions.
5 Contrary to Wang’s argument, the BIA has considered
6 generalized country conditions evidence similar to that
7 which she submitted and rejected it as being insufficient
8 evidence of changed country conditions. See Matter of J-W-
9 S-, 24 I & N Dec. 185 (BIA 2007) and Matter of S-Y-G-, 24 I
10 & N Dec. 247 (BIA 2007)); see also Jian Hui Shao v. Mukasey,
11 546 F.3d 138 (2d Cir. 2008). Moreover, the BIA did not err
12 in declining to consider the photocopied documents that Wang
13 submitted which did not contain “original signatures, seals,
14 nor authenticating information.” See 8 C.F.R. § 1287.6;
15 Matter of S-Y-G-, 24 I & N Dec. at 247. 2
16 Accordingly, the BIA did not abuse its discretion in
17 denying Wang’s untimely motion to reopen and remand.
18 See 8 C.F.R. § 1003.2(c)(3)(ii); Ali, 448 F.3d at 517.
19 For the foregoing reasons, the petition for review is
2
We decline to address Wang’s argument that she
fears a significant fine would be imposed that would rise
to the level of persecution because she failed to exhaust
that argument before the agency. Lin Zhong v. U.S. Dep’t
of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).
8
1 DENIED. As we have completed our review, any stay of
2 removal that the Court previously granted in this petition
3 is VACATED, and any pending motion for a stay of removal in
4 this petition is DISMISSED as moot. Any pending request for
5 oral argument in this petition is DENIED in accordance with
6 Federal Rule of Appellate Procedure 34(a)(2), and Second
7 Circuit Local Rule 34.1(b).
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
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