Wang v. Garland

• Court: Court of Appeals for the Second Circuit
• Decided: March 15, 2022
• Docket: 16-3422(L)
• Status: Unpublished

Opinion

16-3422(L) Wang v. Garland BIA Vomacka, IJ A077 945 274

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 15th day of March, two thousand twenty-two.

PRESENT: ROSEMARY S. POOLER, MICHAEL H. PARK, WILLIAM J. NARDINI, Circuit Judges. _____________________________________

TAN YUN WANG, Petitioner,

v. 16-3422 (L), 19-3655 (Con) NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, 1 Respondent. _____________________________________

FOR PETITIONER: John Son Yong, New York, N.Y.

FOR RESPONDENT: Jeffrey Bossert Clark, Acting Assistant Attorney General; Song

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Merrick B. Garland is automatically substituted as Respondent. Park, Acting Assistant Director; Greg D. Mack, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of these consolidated petitions

for review of decisions of the Board of Immigration Appeals

(“BIA”), it is hereby ORDERED, ADJUDGED, AND DECREED that the

lead petition is DENIED and the consolidated petition is

GRANTED.

Tan Yun Wang, a native and citizen of the People’s

Republic of China, seeks review of both a September 21, 2016,

decision of the BIA affirming an August 3, 2015, decision of

an Immigration Judge (“IJ”) denying Wang’s motion to rescind

an in absentia removal order and reopen removal proceedings,

and an October 28, 2019, BIA decision denying Wang’s

subsequent motion to reopen. In re Tan Yun Wang, No. A 077

945 274 (B.I.A. Sept. 21, 2016), aff’g A077 945 274 (Immig.

Ct. N.Y. City Aug. 3, 2015); In re Tan Yun Wang, No. A077 945

274 (B.I.A. Oct. 28, 2019). We assume the parties’

familiarity with the underlying facts and procedural history.

2 I. Lead Case: Motion to Rescind and Reopen

We have reviewed both the IJ’s and BIA’s decisions

denying the motion to rescind and reopen. See Wangchuck v.

Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006).

When the agency orders an alien removed in absentia, a motion

to reopen is governed by different rules depending on whether

the movant seeks reopening to rescind the order or to present

new evidence of eligibility for relief from removal. See

Song Jin Wu v. INS, 436 F.3d 157, 163 (2d Cir. 2006); In re

M-S-, 22 I. & N. Dec. 349, 353–55 (B.I.A. 1998). Wang sought

to both rescind his in absentia removal order for lack of

notice and to reopen proceedings to apply for asylum based on

his conversion to Catholicism. We thus treat the motion as

comprising distinct motions to rescind and to reopen. Alrefae

v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006); Maghradze v.

Gonzales, 462 F.3d 150, 152 n.1 (2d Cir. 2006). As set forth

the below, we find no abuse of discretion in the agency’s

denial of either relief. See Alrefae, 471 F.3d at 357

(reviewing motion to rescind under same abuse of discretion

standard applicable to motion to reopen); see Jian Hui Shao

v. Mukasey, 546 F.3d 138, 168–69 (2d Cir. 2008) (reviewing

country conditions determination for substantial evidence). 3 A. Motion to Rescind

There are two grounds to rescind an in absentia removal

order: (1) lack of notice of the hearing, and (2) exceptional

circumstances for failure to appear if rescission is

requested within 180 days. 8 U.S.C. § 1229a(b)(5)(C);

8 C.F.R. § 1003.23(b)(4)(ii). Wang relies on both grounds,

asserting that he did not have notice of his hearing and that

ineffective assistance of counsel was an exceptional

circumstance excusing his failure to appear. The agency did

not abuse its discretion in finding that Wang had notice of

his December 2000 hearing because the record reflects that,

after an initial mailing to a wrong address, the immigration

court mailed a hearing notice to the address that Wang gave

in his bond proceedings. The notice to appear warned Wang

that he could be removed in absentia if he did not appear at

his hearing and instructed him to inform the immigration court

of any address change. Accordingly, absent evidence that he

informed the immigration court of his address in Vermont where

he allegedly moved upon his release from detention, the BIA

did not abuse its discretion in declining to rescind the

removal order based on lack of notice. See Maghradze, 462

F.3d at 154 (upholding BIA’s determination “that aliens who 4 fail to provide a written update of a change of address are

deemed to have constructively received notice”).

Second, absent lack of notice, Wang was required to show

that his failure to appear resulted from exceptional

circumstances and file his motion to rescind within 180 days

of his in absentia order. See 8 U.S.C. § 1229a(b)(5)(C);

Song Jin Wu, 436 F.3d at 162. The agency did not abuse its

discretion in declining to rescind on this basis because Wang

moved to rescind more than 13 years after he was removed in

absentia in December 2000, and did not show that he merited

equitable tolling based on ineffective assistance of counsel.

To receive equitable tolling, an alien must demonstrate that

he diligently pursued his ineffective assistance claim during

the entire period he seeks to toll. Rashid v. Mukasey, 533

F.3d 127, 132 (2d Cir. 2008); Iavorski v. U.S. INS, 232 F.3d

124, 134 (2d Cir. 2000). Wang conceded that he knew he had

reason to question the quality of his attorney’s

representation as early as September 2000, and knew as early

as 2001 that he had been ordered removed in absentia; but he

did not move to reopen until March 2014. He argues that his

seeking of advice from various law firms during this period

demonstrates due diligence, but, as the IJ found, he presented 5 no corroboration. His affidavit indicates that he did not

pursue reopening because those attorneys told him he was

likely not eligible for relief from removal. Accordingly,

the agency did not err in finding that Wang failed to act

with due diligence in seeking reopening. See Iavorski, 232

F.3d at 134 (petitioner who waited two years after adverse

BIA decision did not exercise due diligence); Rashid, 533

F.3d at 132–33 (alien who waited 18 months did not demonstrate

due diligence); see also Jian Hua Wang v. BIA, 508 F.3d 710,

715 (2d Cir. 2007) (recognizing that no period is unreasonable

per se, but citing several cases where “petitioner who

wait[ed] two years or longer to take steps to reopen a

proceedings ha[d] failed to demonstrate due diligence”).

B. Motion to Reopen for Asylum

Wang also moved to reopen to apply for asylum based on

his 2012 conversion to Catholicism and the Chinese

authorities’ alleged December 2013 discovery of religious

materials that he sent to his sister in China. This motion

was untimely because it was filed more than 90 days after the

removal order. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.

§ 1003.23(b)(1). The 90-day time limit does not apply if

reopening is sought to apply for asylum and the motion is 6 “based on changed country conditions arising in the country

of nationality or the country to which removal has been

ordered, if such evidence is material and was not available

and would not have been discovered or presented at the

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

also 8 C.F.R. § 1003.23(b)(4)(i). The agency did not abuse

its discretion in declining to reopen on this basis. Wang’s

conversion to Catholicism is a change in personal

circumstances that does not excuse the time limitation on his

motion to reopen. See Wei Guang Wang v. BIA, 437 F.3d 270,

273–74 (2d Cir. 2006) (making clear that the limitations on

motions to reopen may not be suspended because of a “self-

induced change in personal circumstances” that is “entirely

of [the applicant’s] own making after being ordered to leave

the United States”).

In addition, Wang did not otherwise show a change in

conditions in China. Even assuming that the Chinese

authorities’ alleged discovery of religious materials could

constitute a change in conditions in China, the IJ rejected

that claim as not credible and uncorroborated and Wang did

not challenge those findings on appeal to the BIA. See Lin

Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 7 2006) (holding that petitioner generally is required to raise

all issues before the BIA). Were we to reach the issue, we

would find no error in the IJ’s decision not to credit Wang’s

sister’s affidavit and an unauthenticated village committee

notice. See Y.C. v. Holder, 741 F.3d 324, 332, 334 (2d Cir.

2013) (holding that we generally defer to agency’s weighing

of evidence and upholding BIA’s refusal to credit letter from

applicant’s spouse that Chinese authorities had discovered

his political activities in the United States).

To the extent that Wang argued that conditions have

worsened for Catholics in China, he discussed events in 2013

and did not make the necessary comparison to conditions before

his 2000 removal order. See In re S-Y-G-, 24 I. & N. Dec.

247, 253 (B.I.A. 2007) (“In determining whether evidence

accompanying a motion to reopen demonstrates a material

change in country conditions that would justify reopening,

[the agency] compare[s] the evidence of country conditions

submitted with the motion to those that existed at the time

of the merits hearing below.”). Moreover, the country

conditions evidence—a 2012 U.S. State Department report—

supports the agency’s conclusion that there was continued

religious repression, not a material worsening of conditions. 8 II. Consolidated Case

In his second motion to reopen, Wang argued that his

notice to appear (“NTA”) was defective because it did not

provide the date and time of his hearing and thus did not

stop his accrual of presence for cancellation of removal and

did not vest jurisdiction with the IJ. We grant this petition

and remand to the BIA. While Wang’s jurisdictional argument

lacks merit, the BIA should reconsider whether to reopen for

Wang to apply for cancellation of removal.

A nonpermanent resident, like Wang, may have his removal

cancelled if, among other requirements, he can show 10 years

of continuous presence in the United States. 8 U.S.C.

§ 1229b(b)(1)(A). In Pereira v. Sessions, the Supreme Court

held that an NTA must include a hearing time and place to

trigger the stop-time rule, which cuts off a noncitizen’s

accrual of physical presence or residence for purposes of

qualifying for cancellation of removal, see 8 U.S.C.

§ 1229b(a), (b), (d)(1). In rejecting Wang’s motion, the BIA

reasoned that the subsequent hearing notice provided the

missing information and stopped the accrual of presence. The

Supreme Court has since rejected the BIA’s position, holding

that an NTA that does not contain a hearing date and time as 9 required by Pereira is not cured for purposes of the stop-

time rule by a subsequent notice of hearing that provides the

missing information. See Niz-Chavez v. Garland, 141 S.Ct.

1474, 1479, 1481-82 (2021) (requiring the Government to issue

a single NTA containing all statutorily required information

rather than providing the information in separate documents).

Accordingly, we remand on this basis because the BIA

“misperceived the legal background and thought, incorrectly,

that a reopening would necessarily fail.” Mahmood v. Holder,

570 F.3d 466, 469 (2d Cir. 2009).

Wang’s additional argument that the NTA was inadequate

to vest jurisdiction in the immigration court is foreclosed

by Banegas Gomez v. Barr, which held that that Pereira does

not “void jurisdiction in cases in which an NTA omits a

hearing time or place.” 922 F.3d 101, 110 (2d Cir. 2019)

(emphasis omitted). In contrast to the statute governing the

stop-time rule, the regulation vesting jurisdiction does not

require an NTA to specify the time and date of the initial

hearing, “so long as a notice of hearing specifying this

information is later sent to the alien.” Id. at 112

(quotation marks omitted). The Supreme Court’s ruling in

Niz-Chavez does not alter this conclusion. 10 For the foregoing reasons, the lead petition for review

is DENIED and the consolidated petition is GRANTED, the

October 28, 2019, BIA decision is VACATED, and the case is

REMANDED for reconsideration of Wang’s motion to reopen to

apply for cancellation of removal.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court