Tang v. Whitaker

• Court: Court of Appeals for the Second Circuit
• Decided: December 14, 2018
• Docket: 14-552
• Status: Unpublished

Opinion

14-552 Tang v. Whitaker BIA A072 340 105 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 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 14th day of December, two thousand 5 eighteen. 6 7 PRESENT: 8 JON O. NEWMAN, 9 DENNIS JACOBS, 10 PIERRE N. LEVAL, 11 Circuit Judges. 12 _____________________________________ 13 14 FEI GUO TANG, 15 Petitioner, 16 17 v. 14-552 18 NAC 19 20 MATTHEW G. WHITAKER, ACTING 21 UNITED STATES ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 FOR PETITIONER: Vlad Kuzmin, New York, NY. 26 27 FOR RESPONDENT: Benjamin C. Mizer, Principal 28 Deputy Assistant Attorney General; 1 04122018-4 1 Kiley Kane, Senior Litigation 2 Counsel; Lynda A. Do, Attorney, 3 Office of Immigration Litigation, 4 United States Department of 5 Justice, Washington, DC. 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

10 is DENIED.

11 Petitioner Fei Guo Tang, a native and citizen of the

12 People’s Republic of China, seeks review of a January 24,

13 2014, decision of the BIA denying his motion to reopen as

14 untimely. In re Fei Guo Tang, No. A072 340 105 (B.I.A. Jan.

15 24, 2014). We assume the parties’ familiarity with the

16 underlying facts and procedural history in this case. The

17 applicable standards of review are well established. See

18 Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008).

19 Tang moved to reopen his deportation proceedings to

20 present new evidence in support of his claimed fear of

21 persecution in China based on the births of his U.S. citizen

22 children in violation of China’s population control program.

23 It is undisputed that Tang’s motion to reopen was untimely

24 filed more than 15 years after his in absentia deportation 2 04122018-4 1 order became final. See 8 U.S.C. § 1229a(c)(7)(C)(i);

2 8 C.F.R. § 1003.2(c)(2).

3 The time limitation does not apply if the motion is to

4 reopen proceedings in order to apply for asylum “based on

5 changed country conditions arising in the country of

6 nationality or the country to which removal has been ordered,

7 if such evidence is material and was not available and would

8 not have been discovered or presented at the previous

9 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also

10 8 C.F.R. § 1003.2(c)(3)(ii). For largely the same reasons

11 set forth in Jian Hui Shao, we find no error in the agency’s

12 determination that Tang failed to demonstrate a material

13 change in country conditions as needed to excuse the untimely

14 filing of his motion. See 546 F.3d at 159-66, 169-73 (noting

15 that since at least 1998 enforcement of family planning policy

16 has been generally lax in Fujian Province with isolated

17 reports of force being used).

18 For the foregoing reasons, the petition for review is

19 DENIED.

20 FOR THE COURT: 21 Catherine O’Hagan Wolfe 22 Clerk of Court

3 04122018-4