Guo Man Wang v. Holder

12-2901
Wang v. Holder
BIA
A094 813 829
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
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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 25th day of November, two thousand thirteen.

PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
JON O. NEWMAN,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________

GUO MAN WANG,
Petitioner,

v. 12-2901
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________

FOR PETITIONER: David J. Rodkin, New York, NY.

FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Jennifer P.
Levings, Senior Litigation
Counsel,Jennifer R. Khouri, 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 Guo Man Wang, a native and citizen of China,

seeks review of a June 26, 2012 decision of the BIA denying

his motion to reopen his removal proceedings. In re Guo Man

Wang, No. A094 813 829 (B.I.A. June 26, 2012). We assume

the parties’ familiarity with the underlying facts and

procedural history in this case.

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) (per curiam). An alien seeking to reopen

proceedings is required to file a motion to reopen no later

than 90 days after the date on which the final

administrative decision. See 8 U.S.C. § 1229a(c)(7)(C);

8 C.F.R. § 1003.2(c)(2). There is no dispute that Wang’s

motion to reopen, filed in October 2011, was untimely

because the BIA issued a final order of removal in April

2009.

Wang contends, however, that his recent membership in

the Democratic Party of China (“DPC”), and the Chinese

government’s awareness of his political activities in the

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United States, constitute materially changed conditions

excusing his untimely motion. See 8 U.S.C.

§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3).

Contrary to Wang’s contention, the BIA did not abuse

its discretion in finding that he had not established

changed country conditions. Nothing in the United States

Department of State reports compel the conclusion that the

treatment of DPC members has worsened since 2007. See

8 U.S.C. §1252(b)(4)(B) (the BIA’s factual findings are

“conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary”); see also Siewe v.

Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Where there

are two permissible views of the evidence, the factfinder’s

choice between them cannot be clearly erroneous.”) (citation

omitted). Although Wang contends that a recent report shows

that political activists returning to China from abroad are

imprisoned, he did not credibly establish that the Chinese

government was aware of his political activities in this

country or would consider him to be a political activist.

Notably, the BIA found that the only evidence

supporting this claim – a statement from Wang’s wife – was

unreliable because it was unsworn and largely repeated the

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assertions made in a previous statement submitted in support

of Wang’s 2006 asylum application. Given the underlying

adverse credibility determination, the BIA’s determination

that the statement should be given little weight was not an

abuse of discretion. See Qin Wen Zheng v. Gonzales, 500

F.3d 143, 147-49 (2d Cir. 2007) (holding that the BIA did

not abuse its discretion in declining to credit documents

submitted with a motion to reopen where alien had been found

not credible in the underlying asylum hearing); see also

Matter of H–L–H & Z–Y–Z–, 25 I. & N. Dec. 209, 215 (B.I.A.

2010) (giving diminished weight to letters from relatives

that were written by interested witnesses not subject to

cross-examination), abrogated on other grounds by Hui Lin

Huang v. Holder, 677 F.3d 130 (2d Cir. 2012).

Moreover, the BIA reasonably found that Wang’s

membership in the DPC constituted changed personal

circumstances, which are insufficient to excuse the untimely

filing of 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

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being ordered to leave the United States”); see also Yuen

Jin v. Mukasey, 538 F.3d 143, 155 (2d Cir. 2008) (concluding

that the system does not permit aliens who have been ordered

removed “to disregard [those] orders and remain in the

United States long enough to change their personal

circumstances (e.g., by having children or practicing a

persecuted religion) and initiate new proceedings via a new

asylum application”).

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