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Rei Feng Wang v. Lynch

United States Court of Appeals, First Circuit

July 31, 2015

REI FENG WANG, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, [*] Respondent

As Corrected August 6, 2015.

Michael Brown and Law Offices of Michael Brown, P.C., on brief for petitioner.

Ilissa M. Gould, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Joyce R. Branda, Acting Assistant Attorney General, Civil Division, and Leslie McKay, Assistant Director, Office of Immigration Litigation, on brief for respondent.

Before Howard, Chief Judge, Torruella and Lynch, Circuit Judges.

OPINION

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

LYNCH, Circuit Judge.

Rei Feng Wang, a native and citizen of China, petitions for review of an order of the Board of Immigration Appeals (BIA) denying as untimely, by approximately fifteen years, his motion to reopen his earlier removal proceedings on the purported basis of changed country circumstances. We exercise jurisdiction and deny Wang's petition for review. The BIA did not abuse its discretion in denying Wang's motion. We also decline to take a position on a potential circuit split on " mixed petitions."

I.

On October 2, 1996, Wang was interdicted in international waters near Bermuda. He was arrested by immigration officers and then detained. Wang was served with a Notice to Appear in 1997 and was placed in removal proceedings. He conceded he was removable from the United States for being an alien not in possession of valid documentation, see 8 U.S.C. § 1182(a)(7)(A)(i)(I). Wang sought asylum on the basis that his life was in danger because, he claimed, he had testified against the organized crime group that tried to smuggle him into the United States. He also claimed he faced persecution based on China's birth control policy because he and his wife had refused to undergo forced sterilization.[1] On February 2, 1998, an Immigration Judge denied, in part based on adverse credibility findings, Wang's applications for asylum and withholding of removal. Wang's appeal with the BIA was dismissed on February 5, 1999. Wang, however, was not removed and remained in the United States.

In his 2014 motion to reopen his asylum and withholding of removal proceedings, Wang argued that his admittedly late motion should not be barred by the ninety-day limit, see 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2), because " he provides evidence demonstrating changed country conditions in China, his country of nationality." [2] Wang claimed that he has been a practicing Christian since being baptized in 2012 and that he would face persecution if he returned to China. He also maintained that local government cadres had shown his father a video in which Wang made critical statements about the Chinese government and its policies. Wang alleged that the cadres had told his father that Wang must return to China and face punishment. As purported evidence of this, Wang provided an unauthenticated letter allegedly from his father and a purported notice from the village committee in China addressed to Wang's father. Finally, Wang contended that the Chinese government's suppression of underground churches had intensified since 1998.

The BIA denied Wang's motion to reopen on July 15, 2014, because it did not meet the exception to the time bar for relief based on changed circumstances in the country of nationality. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). The BIA found Wang's becoming a practicing Christian constituted a change in personal circumstances, not a change in country conditions. The BIA gave little weight to the unauthenticated letter purportedly from Wang's father, for several reasons, including that it was written by an interested party to support the reopening of Wang's final removal order and thus did not support a finding of materially changed circumstances. The BIA also found that the 2012 State Department report Wang submitted did not demonstrate a material worsening of conditions for Christians in China since his asylum hearing. Wang's petition for review followed.

II.

We review the BIA's denial of a motion to reopen for abuse of discretion. Aponte v. Holder, 610 F.3d 1, 4 (1st Cir. 2010). We " disfavor motions to reopen removal proceedings because they run the risk of frustrating 'the compelling public interests in finality and the expeditious processing of proceedings.'" Hang Chen v. Holder, 675 F.3d 100, 105 (1st Cir. 2012) (quoting Guerrero-Santana v. Gonzales, 499 F.3d 90, 92 (1st Cir. 2007)).

A motion to reopen must be filed within ninety days of the final administrative decision. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Section 1229a provides an exception to this time limit for asylum applications if " the filing of a motion to reopen . . . is 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. § 1003.2(c)(3)(ii) (applying the same standard to ...


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