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Wang v. Holder

United States Court of Appeals, First Circuit

April 30, 2014

XUE SU WANG, Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL, Respondent

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS.

Jeffrey E. Baron and Baron & Shelkin, P.C. on brief for petitioner.

Stuart F. Delery, Assistant Attorney General, Shelley R. Goad, Assistant Director, and Carmel A. Morgan, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, on brief for respondent.

Before Torruella, Selya and Lipez, Circuit Judges.

OPINION

Page 88

SELYA, Circuit Judge

Although a familiar bit of homespun philosophy tells us that hope springs eternal, litigation founded on hope alone, unsupported by persuasive legal or factual arguments, should not be allowed to persist eternally. Such is the lesson of this case.

Petitioner Xue Su Wang, a Chinese national, seeks judicial review of a final order of the Board of Immigration Appeals (BIA) denying his motion to reopen removal proceedings. The petitioner's case began nearly two decades ago, but the relevant facts are susceptible to succinct summarization.

The petitioner entered the United States without inspection in 1993. On November 28, 1994, he filed an application for asylum. Within a matter of months, federal authorities served him with a show-cause order charging removability. See 8 U.S.C. § 1227(a)(1)(B) (formerly 8 U.S.C. § 1251(a)(1)(B)).

A removal hearing, structured to consider both the government's charge and the petitioner's cross-application for asylum, was scheduled for August 16, 1995, at the immigration court in Boston. The petitioner failed to appear, and the immigration judge (IJ) entered an order of deportation in absentia.

Nothing of consequence happened until November 12, 1998, when the petitioner moved to reopen the proceedings. He conceded that he had known of the scheduled show-cause hearing, but said that he did not appear because an immigration consultant whom he had hired advised him that the proceedings would be transferred to New York. He also complained that he never received the in absentia deportation order because it had been mailed to his old Boston address. He admitted, though, that he knew by January of 1996 that there were problems with his asylum claim

Page 89

because his consultant had informed him that the claim had been " cancelled" and he could do nothing further to pursue it.

The IJ recognized that special time-bar rules apply to motions to reopen following in absentia deportation orders. See 8 C.F.R. ยง 1003.23(b)(4)(iii)(A). Nevertheless, the IJ denied the petitioner's motion as untimely. The IJ explained that the petitioner's motion was filed significantly beyond the 180-day deadline for such motions and that the petitioner had waited too long to seek reopening after learning the actual status of his application. The petitioner appealed to the BIA. By order dated November 15, 2000, the ...


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