     14-2825
     Wang v. Sessions
                                                                                       BIA
                                                                                Montante, IJ
                                                                               A076 022 877
                             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 TO 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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   9th day of August, two thousand seventeen.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            DENNIS JACOBS,
 9            PIERRE N. LEVAL,
10                 Circuit Judges.
11   _____________________________________
12
13   YAN HUA WANG,
14                            Petitioner,
15
16                      v.                                           14-2825
17                                                                   NAC
18
19   JEFFERSON B. SESSIONS III,
20   UNITED STATES ATTORNEY GENERAL,
21                 Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                        John Chang, New York, New York.
25
26   FOR RESPONDENT:                        Joyce R. Branda, Acting Assistant
27                                          Attorney General; Anthony C. Payne,

                                               1
      10242016-22
1                                  Assistant Director; Stuart S.
2                                  Nickum, Trial Attorney, Office of
3                                  Immigration Litigation, United
4                                  States Department of Justice,
5                                  Washington, D.C.
6

7            UPON DUE CONSIDERATION of this petition for review of a

8    Board of Immigration Appeals (“BIA”) decision, it is hereby

9    ORDERED, ADJUDGED, AND DECREED that the petition for review is

10   DENIED.

11           Petitioner Yan Hua Wang, a native and citizen of China,

12   seeks review of a July 21, 2014, decision of the BIA affirming

13   a July 11, 2013, decision of an Immigration Judge (“IJ”) denying

14   her motion to rescind and reopen.    In re Yan Hua Wang, No. A076

15   022 877 (B.I.A. July 21, 2014), aff’g No. A076 022 877 (Immig.

16   Ct. Buffalo July 11, 2013).    We assume the parties’ familiarity

17   with the underlying facts and procedural history in this case.

18   The applicable standards of review are well established.     See

19   Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006); Jian Hui

20   Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008).

21   Motion to Rescind

22           An order of removal entered in absentia “may be rescinded

23   only--(i) upon a motion to reopen filed within 180 days after

24   the date of the order of removal if the alien demonstrates that
                                      2
     10242016-22
1    the failure to appear was because of exceptional circumstances

2    . . .; or (ii) upon a motion to reopen filed at any time if the

3    alien demonstrates that the alien did not receive notice . .

4    . and the failure to appear was through no fault of the alien.”

5    8 U.S.C. § 1229a(b)(5)(C).                 Wang’s motion to rescind was

6    subject to the 180-day time limit because she received notice

7    of her hearing but asserted that exceptional circumstances

8    should excuse her failure to appear.             See id.    It is undisputed

9    that Wang’s 2013 motion to rescind was untimely because the IJ’s

10   in absentia removal order was issued almost fourteen years

11   earlier in 1999.            See 8 U.S.C. § 1229a(b)(5)(C)(i).

12           In    order    to   warrant      equitable   tolling   or    establish

13   exceptional circumstances, even assuming that prior counsel was

14   ineffective,          an    alien   is    required   to    demonstrate    “due

15   diligence” in pursuing his claim during “both the period of time

16   before the ineffective assistance of counsel was or should have

17   been discovered and the period from that point until the motion

18   to reopen is filed.”           Rashid v. Mukasey, 533 F.3d 127, 132 (2d

19   Cir. 2008); see also Cekic v. INS, 435 F.3d 167, 170 (2d Cir.

20   2006).        Wang failed to demonstrate due diligence.             She did not

21   inquire about the status of her proceedings between 1999 and

                                               3
     10242016-22
1    2005, and then, when she purportedly discovered her former

2    counsel’s ineffective assistance, she took no action to reopen

3    her own proceedings until 2013, and instead pursued asylum only

4    as a derivative beneficiary in her husband’s proceedings.        See

5    Jian Hua Wang v. BIA, 508 F.3d 710, 715-16 (2d Cir. 2007)

6    (providing that “petitioner bears the burden of proving that

7    [s]he has exercised due diligence in the period between

8    discovering the ineffectiveness of h[er] representation and

9    filing the motion” and citing several cases in which the Court

10   held that “a petitioner who waits two years or longer to take

11   steps to reopen a proceedings ha[d] failed to demonstrate due

12   diligence”).

13   Motion to Reopen

14           Wang sought to reopen to apply for asylum because she fears

15   persecution in China based on both the birth of her two children

16   in the United States purportedly in violation of China’s

17   population control program, and her conversion to Catholicism.

18   It is undisputed that Wang’s 2013 motion to reopen was untimely

19   because it was filed more than thirteen years after her removal

20   order         became   final.   See   8 U.S.C.   § 1229a(c)(7)(C)(i);

21   8 C.F.R. § 1003.2(c)(2).         However, the time limitation for

                                           4
     10242016-22
1    filing a motion to reopen to apply for asylum does not apply

2    if the motion “is based on changed country conditions arising

3    in the country of nationality or the country to which removal

4    has been ordered, if such evidence is material and was not

5    available and would not have been discovered or presented at

6    the previous proceeding.”      8 U.S.C. § 1229a(c)(7)(C)(ii); see

7    also 8 C.F.R. § 1003.2(c)(3)(ii).

8            For largely the same reasons as this Court set forth in Jian

9    Hui Shao, we find no error in the agency’s determination that

10   Wang failed to demonstrate either a material change in the

11   enforcement of China’s population control program or her prima

12   facie eligibility for relief based on the birth of her children.

13   See 546 F.3d at 158-72.

14           Insofar as Wang’s motion to reopen was based on her

15   conversion to Catholicism in the United States, the agency did

16   not err in finding that she failed to demonstrate a material

17   change in conditions because her motion to reopen included no

18   evidence of conditions in China at the time of her initial

19   proceedings.      See In re S-Y-G-, 24 I. & N. Dec. 247, 251, 253,

20   258 (B.I.A. 2007).      Alternatively, the agency did not err in

21   finding that Wang failed to demonstrate her prima facie

                                       5
     10242016-22
1    eligibility for relief based on her religion because she did

2    not submit evidence that Chinese authorities are aware of, or

3    likely to become aware of, her religious practice.         See

4    Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008);

5    see also Jian Hui Shao, 546 F.3d at 168.

6            For the foregoing reasons, the petition for review is

7    DENIED.

 8                                 FOR THE COURT:
 9                                 Catherine O’Hagan Wolfe, Clerk
10




                                    6
     10242016-22
