                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-26-2006

Wang v. Secretary Homeland
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4707




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                                                     NOT PRECEDENTIAL


      IN THE UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT



                          No. 04-4707


                    MING SHAN WANG,
                              Petitioner

                               v.

                 ATTORNEY GENERAL
              UNITED STATES OF AMERICA,
                             Respondent


               Petition for Review of an Order
             of the Board of Immigration Appeals
                    (INS No. A79-629-739)
           Immigration Judge: Hon. Henry S. Dogin


          Submitted Under Third Circuit LAR 34.1(a)
                       April 17, 2006

 Before: SLOVITER, AMBRO, and MICHEL*, Circuit Judges

                     (Filed: April 26, 2006)



                           OPINION




      *
        The Honorable Paul R. Michel, Chief Judge, United States
Court of Appeals for the Federal Circuit, sitting by designation.
SLOVITER, Circuit Judge.

       Petitioner Ming Shan Wang (“Wang”), a native and citizen of China, petitions for

review of a final order by the Board of Immigration Appeals (“BIA” or “Board”), which

was entered on November 26, 2004, affirming the immigration judge’s (“IJ”) denial of

Wang’s motion to reopen her removal proceedings.

                                             I.

       Wang arrived in the United States in 2002 without valid entry documents and was

placed in removal proceedings. After removability was established in a hearing before an

IJ, Wang sought relief in the forms of asylum, withholding of removal, and Article 3 of

the Convention Against Torture (“CAT”). At her asylum hearing, Wang argued that she

has been persecuted and has a well-founded fear of persecution by the Chinese

government based on her relationship with her grandmother, who is a Falun Gong

practitioner. She maintained that although she did not practice Falun Gong herself, she

was beaten and detained by the police, who accused her of being a member. The IJ

denied Wang’s applications because he found her testimony incredible and determined

that she had failed to provide evidence that sufficiently supported her claim of past and

future persecution.

       Wang did not appeal her removal order to the BIA. Instead, on March 8, 2004, she

filed a motion to reopen her removal proceedings or, in the alternative, to vacate and

reinstate the Court’s previous decision, which would afford her a new window of

opportunity to appeal the December 19, 2003 removal order within thirty days thereof. In

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support of her motion to reopen, Wang submitted an affidavit claiming that she received

information one week after the IJ denied her applications for relief that Chinese

government officials have been pursuing her because she failed to abide by the terms of

her release from detention in China. The IJ denied the motion because he was not

satisfied that the information could not have been discovered before or presented at

Wang’s removal hearing. The IJ stated that even if the information contained in the

affidavit had been presented at Wang’s initial hearing, he would have rendered the same

decision because he had previously made an adverse credibility finding and nothing in the

“bare and unsupported assertion on [Wang’s] affidavit” rehabilitated Wang’s “incredible

testimony.” App. at 9. The BIA adopted and affirmed the IJ’s decision, and this petition

for review followed.

                                             II.

                                      DISCUSSION

A.     Adverse Credibility Finding

       Wang first claims that the IJ abused his discretion in finding her to be an incredible

witness, a finding we ordinarily review for substantial evidence. See Butt v. Gonzales,

429 F.3d 430, 433 (3d Cir. 2005). We need not conduct such an inquiry here because we

lack jurisdiction to do so. Wang failed to exhaust her available administrative remedies

by failing to appeal the IJ’s adverse credibility determination to the BIA. See 8 U.S.C.

§1252(d)(1); Zheng v. Gonzales, 422 F.3d 98, 107-108 (3d Cir. 2005) (“The failure to

exhaust this claim before the BIA ‘bars consideration of particular questions not raised in

                                             3
an appeal to the Board.’”) (quoting Alleyne v. INS, 879 F.2d 1177, 1182 (3d Cir. 1989)).

Accordingly, because Wang failed to present this claim to the BIA, it is unexhausted, and

we must dismiss Wang’s petition for review of the IJ’s adverse credibility finding for lack

of jurisdiction.

B.     Motion to Reopen

       Wang also alleges that the BIA abused its discretion by failing to attach sufficient

weight to Wang’s above-mentioned affidavit and affirming the denial of Wang’s motion

to reopen. We have exclusive jurisdiction to review the BIA’s affirmance of a denial of a

motion to reopen removal proceedings. See 8 U.S.C. §1252(a)(1). Generally, motions to

reopen are granted only under compelling circumstances. Guo v. Ashcroft, 386 F.3d 556,

561 (3d Cir. 2004). As the United States Supreme Court has explained:

               The granting of a motion to reopen is . . . discretionary[.]
               [T]he Attorney General has “broad discretion” to grant or
               deny such motions. Motions for reopening of immigration
               proceedings are disfavored for the same reasons as are
               petitions for rehearing and motions for a new trial on the basis
               of newly discovered evidence. This is especially true in a
               deportation proceeding, where, as a general matter, every
               delay works to the advantage of the deportable alien who
               wishes merely to remain in the United States.

INS v. Doherty, 502 U.S. 314, 323 (1992) (citations omitted).

       In light of these considerations, our review is highly deferential: we review the

denial of a motion to reopen for abuse of discretion. Id. “Discretionary decisions of the

BIA will not be disturbed unless they are found to be arbitrary, irrational, or contrary to

law.” Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994) (quotation marks omitted). Because

                                              4
the BIA summarily affirmed the IJ’s decision without opinion, we review the findings and

conclusions of the IJ. See Partyka v. Att’y Gen., 417 F.3d 408, 411 (3d Cir. 2005).

       A motion to reopen removal proceedings must “state the new facts that will be

proven at a hearing to be held if the motion is granted, and shall be supported by

affidavits or other evidentiary material.” 8 U.S.C. §1229a(c)(7)(B). A motion to reopen

will not be granted unless the IJ is satisfied that the new evidence being offered is

material and was not available and could not have been discovered or presented at the

earlier hearing. See 8 C.F.R. §1003.23(b)(3).

       In support of her motion to reopen, Wang submits an affidavit stating that,

subsequent to her former hearing, she was informed that Chinese government officials

were searching for her for violating her release from detention. The IJ concluded that

Wang failed to demonstrate that the evidence she sought to produce was not available and

could not have been discovered or presented at her prior hearing. Although Wang’s

affidavit states that she received the information from her mother one week after her

hearing, the Government notes that the affidavit fails to demonstrate how Wang received

the information, when the Chinese government officials began looking for Wang, or that

the information was not available earlier.

       Because the basis for the IJ’s adverse credibility assessment was directly related to

Wang’s motion to reopen, the IJ did not abuse its discretion by taking that assessment into

consideration. It follows that the BIA’s denial of Wang’s motion to reopen was not

arbitrary, capricious, or contrary to law.

                                              5
C.    BIA’s Summary Affirmance

      Finally, Wang appears to challenge the BIA’s summary affirmance of the IJ’s

decision as an abuse of the BIA’s discretion. However, Wang’s objections to the

summary affirmance procedure are not persuasive. We have previously held that the

BIA’s use of this summary affirmance procedure is proper and that it neither violates due

process nor runs afoul of the Immigration and Nationality Act. Dia v. Ashcroft, 353 F.3d

228, 238-239 (3d Cir. 2003) (en banc). Accordingly, this argument is without merit.

                                           III.

                                    CONCLUSION

      For the foregoing reasons, we will dismiss for lack of jurisdiction Wang’s petition

for review of the IJ’s adverse credibility determination and deny Wang’s petition for

review.




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