Yinggui Wang v. Holder

12-4720
Wang v. Holder
BIA
A079 652 714
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 A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 20th day of May, two thousand fourteen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 GUIDO CALABRESI,
9 REENA RAGGI,
10 Circuit Judges.
11 _____________________________________
12
13 YINGGUI WANG,
14 Petitioner,
15
16 v. 12-4720
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: G. Victoria Calle, Calle &
24 Associates, New York, New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Blair T. O’Connor,
28 Assistant Director; John B. Holt,
29 Trial Attorney, Civil Division,
30 Office of Immigration Litigation,
31 United States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a

2 decision of the Board of Immigration Appeals (“BIA”), it is

3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for

4 review is DENIED.

5 Yinggui Wang, a native and citizen of the People’s

6 Republic of China, seeks review of an October 31, 2012,

7 order of the BIA denying his motion to reopen proceedings.

8 See Yinggui Wang, No. A079 652 714 (B.I.A. Oct. 31, 2012).

9 We assume the parties’ familiarity with the underlying facts

10 and procedural history of this case.

11 We review the BIA’s denial of a motion to reopen for

12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517

13 (2d Cir. 2006). An alien seeking to reopen proceedings is

14 required to file a motion to reopen no later than 90 days

15 after the date of the final administrative decision. See

16 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2). There

17 is no dispute that Wang’s motion to reopen, filed in 2012,

18 was untimely because the BIA issued a final order of removal

19 in 2004.

20 To the extent Wang argues that his conversion to

21 Christianity excuses the untimeliness of his motion to

22 reopen, his conversion amounts to a change in his personal

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1 circumstances, which is not an exception to the 90-day time

2 limit. See Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d

3 Cir. 2006) (making clear that the limitations on motions to

4 reopen may not be suspended because of a “self-induced

5 change in personal circumstances” that is “entirely of [the

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

7 United States”).

8 Wang also argues that changed conditions in China

9 excuse the untimeliness of his motion to reopen, but points

10 to no evidence in the record that establishes that there has

11 been any change in the treatment of Christians in China.

12 The claim is therefore waived. See Yueqing Zhang v.

13 Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).

14 Even if not waived, none of the evidence Wang presented in

15 support of reopening compels the conclusion that conditions

16 in China have changed, as the evidence reflects repression

17 of Christians pre-dating his original proceeding. See

18 8 U.S.C. § 1252(b)(4)(B) (the BIA’s factual findings are

19 “conclusive unless any reasonable adjudicator would be

20 compelled to conclude to the contrary”); Jian Hui Shao v.

21 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (reviewing

22 agency’s factual findings regarding country conditions under

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1 the substantial evidence standard); Norani v. Gonzales, 451

2 F.3d 292, 294 & n.3 (2d Cir. 2006) (looking to the date on

3 which the immigration judge closed the record as the date

4 before which the evidence must have been unavailable,

5 undiscoverable, or unpresentable).

6 Finally, to the extent Wang challenges the BIA’s

7 refusal to reopen the proceedings sua sponte, we lack

8 jurisdiction to review that decision. See Ali, 448 F.3d at

9 517-18.

10 For the foregoing reasons, the petition for review is

11 DENIED. As we have completed our review, any stay of

12 removal that the Court previously granted in this petition

13 is VACATED, and any pending motion for a stay of removal in

14 this petition is DISMISSED as moot. Any pending request for

15 oral argument in this petition is DENIED in accordance with

16 Federal Rule of Appellate Procedure 34(a)(2), and Second

17 Circuit Local Rule 34.1(b).

18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
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