08-2156-ag, 09-1122-ag
Weng v. Holder
BIA
Gordon-Uruakpa
A099 075 466
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.
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 12 th day of January, two thousand ten.
PRESENT:
ROBERT A. KATZMANN,
BARRINGTON D. PARKER,
GERARD E. LYNCH,
Circuit Judges.
_________________________________________
YU XIAN WENG,
Petitioner,
08-2156-ag
v. 09-1122-ag
NAC
ERIC H. HOLDER, JR., U.S. ATTORNEY
GENERAL, *
Respondent.
_________________________________________
FOR PETITIONER: Theodore N. Cox, New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Alison Marie Igoe, Senior
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in docket number 08-2156-
ag.
Litigation Counsel; Anthony P.
Nicastro, Senior Litigation Counsel;
Edward J. Duffy, Trial Attorney;
Jeffrey R. Leist, Attorney, Office
of Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of these petitions for review of
two Board of Immigration Appeals (“BIA”) decisions, it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petitions
for review are DENIED.
In docket number 08-2156-ag, Petitioner Yu Xian Weng, a
native and citizen of the People’s Republic of China, seeks
review of an April 14, 2008 order of the BIA, affirming the
May 31, 2006 decision of Immigration Judge (“IJ”) Vivienne
E. Gordon-Uruakpa, which denied her application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Yu Xian Weng, No. A099 075
466 (B.I.A. Apr. 14, 2008), aff’g No. A099 075 466 (Immig.
Ct. N.Y. City May 31, 2006). In docket number 09-1122-ag,
Weng seeks review of a February 25, 2009 decision of the
BIA, denying her motion to reopen. In re Yu Xian Weng, No.
A099 075 466 (B.I.A. Feb. 25, 2009). The petitions for
review are consolidated for purposes of this order. We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.
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I. Docket Number 08-2156-ag
We review the BIA’s factual findings under the
substantial evidence standard. See 8 U.S.C. §
1252(b)(4)(B); Jian Hui Shao v. Mukasey, 546 F.3d 138, 157-
58 (2d Cir. 2008). We review de novo questions of law and
the application of law to undisputed fact. Bah v. Mukasey,
529 F.3d 99, 110 (2d Cir. 2008). In this case, the agency
reasonably found that Weng failed to establish a well-
founded fear of forced sterilization on account of the birth
of her U.S. citizen children.
Weng argues that the agency erred in relying on its
precedential decision in Matter of J-W-S-, 24 I. & N. Dec.
185 (B.I.A. 2007) to incorporate into the record the U.S.
Department of State’s 2007 report, China: Profile of Asylum
Claims and Country Conditions (“2007 Profile”) and to find
that she did not establish a well-founded fear of forced
sterilization. This Court, however, has found that the
BIA’s decision in Matter of J-W-S- was supported by
substantial evidence. See Jian Hui Shao, 546 F.3d at 162-
66. Nor did the BIA improperly incorporate the 2007 Profile
into the record of Weng’s case. See id. at 166-68.
We have previously reviewed the agency’s analysis of
country conditions evidence similar to that which Weng
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submitted in support of her application and have concluded
that the agency does not err in finding that such evidence
does not demonstrate a well-founded fear of persecution.
See id. at 158-73. Moreover, contrary to Weng’s argument,
the BIA did not err in finding that letters from her family
and friend failed to demonstrate that she has an objectively
reasonable fear of forced sterilization based on the birth
of her U.S. citizen children because those letters did not
reference the treatment of individuals similarly situated to
Weng, i.e., Chinese nationals returning to China with U.S.-
citizen children. See id. at 160-61. Accordingly, because
the agency did not err in finding that Weng failed to
demonstrate a well-founded fear of persecution on account of
the birth of her U.S. citizen children, the agency
reasonably denied her applications for asylum, withholding
of removal, and CAT relief based on that claim. See Paul v.
Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
II. Docket Number 09-1122-ag
We review the BIA’s denial of a motion to reopen for
abuse of discretion. Kaur v. BIA, 413 F.3d 232, 233 (2d
Cir. 2005) (per curiam). There is no dispute that Weng’s
motion to reopen filed on August 13, 2008 was untimely
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because the BIA issued a final order of removal on April 14,
2008. See 8 C.F.R.
§ 1003.2(c)(2) (providing that an alien seeking to reopen
proceedings may file one motion to reopen no later than 90
days after the date on which the final administrative
decision was rendered). Although ineffective assistance of
counsel may provide a basis for equitable tolling of the
filing deadline, Iavorski v. INS, 232 F.3d 124, 126-27 (2d
Cir. 2000), contrary to Weng’s argument, the BIA did not
abuse its discretion in declining to equitably toll the time
period for filing her motion to reopen based on the
purportedly ineffective assistance of her former counsel.
In order to warrant equitable tolling based on the
ineffective assistance of counsel, a movant must, as an
initial matter, ”demonstrate (1) ‘that competent counsel
would have acted otherwise,’ and (2) that [she was]
‘prejudiced by . . . counsel’s performance.’” Cekic v. INS,
435 F.3d 167, 171 (2d Cir. 2006) (quoting Rabiu v. INS, 41
F.3d 879, 882 (2d Cir. 1994)). In her motion to reopen,
Weng argued that her former counsel was ineffective because
he “failed to submit Chinese Family Planning Policy
background information.” However, as the BIA found, Weng’s
5
former counsel submitted substantial background evidence in
support of her application for relief, including two U.S.
Department of State reports, a media report regarding
China’s family planning policy, and an excerpt from the
Fujian Province family planning regulations. In addition,
the BIA reasonably noted that Weng’s former counsel had
submitted her “household registration booklet, her medical
records, evidence of the birth of her children in the United
States, statements from relatives and a friend in China, and
other evidence specific to her asylum claim.” Thus, the BIA
reasonably found that the requirements for equitable tolling
were not met because her former counsel’s performance was
not deficient. See Cekic, 435 F.3d at 170-71.
For the foregoing reasons, these petitions for review
are DENIED. As we have completed our review, the pending
motion for a stay of removal in these petitions is DISMISSED
as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
By:___________________________
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