09-4796-ag
Jiang v. Holder
BIA
A077 008 350
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
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IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
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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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 16 th day of December, two thousand ten.
PRESENT:
JOHN M. WALKER, JR.,
PETER W. HALL,
DENNY CHIN,
Circuit Judges.
_________________________________________
CAI PING JIANG, A.K.A. PING JIANG CAI,
Petitioner,
v. 09-4796-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_________________________________________
FOR PETITIONER: Sheema Chaudhry, Law Offices of
Michael Brown, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Michelle Gorden Latour,
Assistant Director; Matt A. Crapo,
Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DENIED.
Petitioner Cai Ping Jiang, a native and citizen of the
People’s Republic of China, seeks review of the November 4,
2009, decision of the BIA denying her motion to reopen. In
re Cai Ping Jiang, No. A077 008 350 (B.I.A. Nov. 4, 2009).
We review the BIA’s denial of a motion to reopen for abuse
of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d
Cir. 2006). When the BIA evaluates evidence of country
conditions submitted with a motion to reopen, we review its
findings to determine if they are supported by substantial
evidence. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169
(2d Cir. 2008). We review the denial of a motion to reopen
for abuse of discretion. See Debeatham v. Holder, 602 F.3d
481, 484 (2d Cir. 2010). We assume the parties’ familiarity
with the underlying facts and procedural history of the
case.
The BIA’s denial of Jiang’s motion to reopen as
untimely was not in error. A motion to reopen generally
must be filed no later than 90 days after the date on which
the final administrative decision has been rendered in the
proceedings sought to be reopened. 8 C.F.R. § 1003.2(c)(2).
There is no dispute that Jiang’s June 2009 motion was
untimely because her final order of removal was issued in
March 2002. See id. The BIA did not abuse its discretion
in declining to apply equitable tolling to the time period
for filing the motion based on Jiang’s claim of ineffective
assistance of counsel. For the following reasons it found
that Jiang failed to demonstrate that she exercised due
diligence in pursuing that claim. Jiang learned of her
prior counsel’s ineffective assistance in April 2002 and
consulted an “immigration agency” at that time, but she did
not file a motion to reopen until more than seven years
later in June 2009. The BIA’s determination that Jiang did
not exercise due diligence when she waited more than seven
years to file her motion to reopen was not an abuse of
discretion. See Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d
Cir. 2007).
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The BIA also did not err in determining that Jiang
failed to establish changed country conditions sufficient to
excuse the untimely filing of her motion under 8 C.F.R.
§ 1003.2(c)(3)(ii). The BIA reasonably relied on the IJ’s
underlying adverse credibility determination in declining to
credit an affidavit from Jiang’s father and an
unauthenticated village committee notice, both of which
indicated that Chinese government officials had learned of
Jiang’s practice of Falun Gong in the United States and that
she would be “punished” for that practice. See Qin Wen
Zheng v. Gonzales, 500 F.3d 143, 149 (2d Cir. 2007). As it
was reasonable for the BIA not to credit either the
affidavit from Jiang’s father or the purported village
committee notice, it did not err in concluding that her
practice of Falun Gong constituted only a change in her
personal circumstances rather than a change in circumstances
in China sufficient to excuse the untimely filing of her
motion to reopen. See Wei Huang Wang v. BIA, 437 F.3d 270,
274 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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