Wang v. Holder
Appeal Court of Appeals for the Second Circuit, Case No. 10-2173

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10-2173-ag

Wang v. Holder
BIA
A073 583 567
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 Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 5th day of April, two thousand eleven. 5 6 PRESENT: 7 ROSEMARY S. POOLER, 8 ROBERT D. SACK, 9 RICHARD C. WESLEY, 10 Circuit Judges. 11
12 13 XUE TIAN WANG, 14 Petitioner, 15 16 v. 10-2173-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21
22 23 FOR PETITIONER: Lewis Hu, New York, New York. 24 25 FOR RESPONDENTS: Tony West, Assistant Attorney 26 General; James A. Hunolt, Senior 27 Litigation Counsel; Nehal H. Kamani, 28 Trial Attorney, Office of 29 Immigration Litigation, United 30 States Department of Justice, 31 Washington D.C. 1 2 UPON DUE CONSIDERATION of this petition for review of a 3 Board of Immigration Appeals ("BIA") decision, it is hereby 4 ORDERED, ADJUDGED, AND DECREED that the petition for review 5 is DENIED. 6 Petitioner Xue Tian Wang, a native and citizen of 7 China, seeks review of the BIA's May 6, 2010 order denying 8 his motion to reopen his removal proceedings. In re Xue 9 Tian Wang, No. A073 583 567 (B.I.A. May 6, 2010). We assume 10 the parties' familiarity with the underlying facts and 11 procedural history in this case. 12 Our review is limited to the BIA's decision not to 13 reopen Wang's removal proceedings, as Wang did not file a 14 timely petition for review of the underlying order denying 15 his eligibility for relief.1 See Alam v. Gonzales, 438 F.3d 16 184, 186 (2d Cir. 2006). We review the BIA's denial of a 17 motion to reopen for abuse of discretion. See Ali v. [End Page 1]
While Wang argues he did not know of his right to

appeal the BIA's initial decision, failure to inform an

alien of the right to seek appellate review does not, in

and of itself, violate due process. United States v.

Lopez,445 F.3d 90, 96 (2d Cir. 2006). Additionally, the

BIA's decision to affirm without an opinion neither

violates due process, Yu Sheng Zhang v. U.S. Dep't of

Justice, 362 F.3d 155, 160 (2d Cir. 2004), nor

constitutes an abuse of discretion, Xusheng Shi v. BIA,

374, F.3d 64, 66 (2d Cir.2004).[End Page 2] 1 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). 2 The BIA did not abuse its discretion in denying Wang's 3 motion to reopen as untimely, as he filed it more than seven 4 years after the BIA upheld the immigration judge's 5 underlying merits decision, and number-barred, as it was his 6 second motion to reopen. 8 C.F.R. § 1003.2(c)(2). Although 7 the time and number limitations do not apply to a motion to 8 reopen seeking to apply for asylum "based on changed 9 circumstances arising in the country of nationality or in 10 the country to which deportation has been ordered, if such 11 evidence is material and was not available and could not 12 have been discovered or presented at the previous hearing," 13 8 C.F.R. § 1003.2(c)(3)(ii), as the BIA found, Wang's 14 political activities in the United States constituted a 15 change in personal circumstances, not a change in country 16 conditions, see Yuen Jin v. Mukasey, 538 F.3d 143, 155 (2d 17 Cir. 2008). In addition, substantial evidence supports the 18 BIA's finding that Wang did not demonstrate a change in 19 country conditions in China, as Wang presented only evidence 20 of longstanding persecution of political dissidents by the 21 Chinese government without any explanation or evidence 22 indicating a change in the treatment of dissidents. See [End Page 3] 1 Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). 2 The BIA was not required to address each individual piece of 3 evidence and Wang has pointed to no evidence which 4 contradicts the BIA's conclusions. See Wei Guang Wang v. 5 BIA, 437 F.3d 270, 273-74 (2d Cir. 2006). 6 For the foregoing reasons, the petition for review is 7 DENIED. As we have completed our review, the pending motion 8 for a stay of removal in this petition is DISMISSED as moot. 9 10 FOR THE COURT: 11 Catherine O'Hagan Wolfe, Clerk 12 13 14

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