         08-0282-ag (L); 09-3416-ag (Con)
         Wang v. Holder
                                                                                       BIA
                                                                                Bukszpan, IJ
                                                                               A095 850 961
                                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 8 th day of September, two thousand               ten.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                JOSÉ A. CABRANES,
 9                PETER W. HALL,
10                    Circuit Judges.
11       _______________________________________
12
13       XIU QIN WANG,
14                Petitioner,
15
16                           v.                                 08-0282-ag (L);
17                                                              09-3416-ag (Con)
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:                     Richard Tarzia, Belle Mead, New
25                                           Jersey.
26
27       FOR RESPONDENT:                     Gregory G Katsas, Assistant Attorney
28                                           General, James E. Grimes, Senior
29                                           Litigation Counsel, Lindsay B.
30                                           Glauner, Trial Attorney, Office of
31                                           Immigration Litigation, Civil
32                                           Division, United States Department
33                                           of Justice, Washington, D.C.
1         UPON DUE CONSIDERATION of this petition for review of a

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

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

4    is DENIED.

5         Petitioner Xiu Qin Wang, a native and citizen of China,

6    seeks review of: (1) the December 26, 2007, decision of the

7    BIA, affirming the July 25, 2006, decision of Immigration

8    Judge (“IJ”) Joanna Miller Bukszpan, In re Xiu Qin Wang, No.

9    A095 850 961 (B.I.A. Dec. 26, 2007), aff’g No. A095 850 961

10   (Immig. Ct. N.Y. City July 25, 2006); and (2) the July 15,

11   2009, decision of the BIA denying her motion to reopen and

12   remand.    In re Xiu Qin Wang, No. A095 850 961 (B.I.A. July

13   15, 2009).    We assume the parties’ familiarity with the

14   underlying facts and procedural history in this case.

15   I.   Dkt No. 08-0282-ag (L)

16        A.    BIA’s Denial of Wang’s Motion to Accept Untimely

17              Brief

18        As an initial matter, contrary to Wang’s argument, the

19   BIA did not err in denying her motion to accept her untimely

20   brief.    Although Wang argues that the untimeliness of her

21   brief was due to an error by the company she used for

22   delivery, as the BIA noted, “it recommends that parties file


                                    2
1    as far in advance of [a filing] deadline as possible because

2    short delays in delivery are to be expected and do not

3    warrant consideration of an untimely appeal on

4    certification.”   See Matter of Vladimir Liadov, 23 I & N

5    Dec. 990 (BIA 2006) (noting that in two sections in the BIA

6    Practice Manual, it “specifically cautions that use of an

7    overnight delivery service does not mean that failing to

8    meet filing deadlines will be excused”)).    Moreover, under

9    8 C.F.R. § 1003.3(c)(1), the BIA has the discretion to

10   decide whether to consider briefs filed out of time.     See

11   also Dedji v. Mukasey, 525 F.3d 187, 192 (2d Cir. 2008)

12   (holding that “IJs are accorded wide latitude in calendar

13   management, and we will not micromanage their scheduling

14   decisions any more than when we review such decisions by

15   district judges.” (citing Morgan v. Gonzales, 445 F.3d 549,

16   551 (2d Cir. 2006))).

17       B.   Asylum and Withholding of Removal

18       Under the circumstances of this case, we review the

19   decision of the IJ as supplemented by the BIA.    See Yan Chen

20   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).    The

21   applicable standards of review are well-established.

22   See 8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d


                                   3
1    90, 95 (2d Cir. 2008); Salimatou Bah v. Mukasey, 529 F.3d

2    99, 110 (2d Cir. 2008).

3                  1.   Asylum-Discretionary Denial 1

4        The IJ denied Wang’s application for asylum as a matter

5    of discretion.       A discretionary decision to grant or deny

6    asylum will be “conclusive unless manifestly contrary to the

7    law and an abuse of discretion.”        Wu Zheng Huang v. INS, 436

8    F.3d 89, 96 (2d Cir. 2006) (quoting 8 U.S.C.

9    § 1252(b)(4)(D)).       The agency acts within its “discretion to

10   deny asylum where the ‘seriousness of [a petitioner’s]

11   criminal conduct’ . . . [i]s not counterbalanced by any

12   mitigating circumstances or witnesses.”        Id. at 100 n.12

13   (quoting Kong Min Jian v. INS, 28 F.3d 256, 258 (2d Cir.

14   2006)).       In considering mitigating factors, the agency

15   should consider past persecution, the danger of future

16   persecution, a concession of removability, and family

17   reunification.       Wu Zheng Huang, 436 F.3d at 100-01.

18       Here, contrary to Wang’s argument, the IJ did not abuse

19   its discretion in finding that, although Wang’s two U.S.


               1
             As we find that the agency did not err in its
       discretionary denial of asylum, we decline to reach the
       agency’s finding that Wang’s subjective fear of
       persecution was undermined by the fact that she sent one
       of her children to stay in China.

                                        4
1    citizen children were “very high positive factors” in

2    support of a favorable exercise of discretion, those

3    positive factors did not outweigh her “egregious” actions,

4    which included: (1) entering the U.S. to marry someone who

5    had already been ordered excluded; (2) filing “misleading”

6    tax returns; (3) receiving “questionable” Medicaid benefits;

7    (4) submitting “problematic” supporting documentation.

8    Moreover, Wang points to nothing in the record to support

9    her argument that the IJ erred in relying on these negative

10   discretionary factors.    Accordingly, because the IJ’s

11   findings were not “arbitrary or capricious,” she did not

12   abuse her discretion in denying Wang’s asylum application as

13   a matter of discretion.

14            2.   Withholding of Removal

15       The IJ also did not err in denying Wang’s application

16   for withholding of removal because the background evidence

17   that she submitted did not demonstrate that she would more

18   likely than not be sterilized.     Contrary to Wang’s argument

19   that the IJ erred in denying her application for withholding

20   of removal because the IJ also found that the evidence

21   “shows it is possible that [Wang] would be persecuted

22   against her will,” Wang was required to show that it was



                                    5
1    “more likely than not” that she would be sterilized, rather

2    than a mere possibility of sterilization.   See 8 C.F.R.

3    § 208.16(b)(1); See Ramsameachire v. Ashcroft, 357 F.3d 169,

4    178 (2d Cir. 2004).   Moreover, in Matter of J-W-S-, the BIA

5    held that much of the evidence that Wang submitted–the 2005

6    Department of State Country Report and the Aird

7    affidavit–was insufficient to demonstrate an objectively

8    reasonable fear of persecution for violating the family

9    planning policy.   24 I & N Dec.185, 192 (2007).

10   Additionally, Wang did not present any evidence of similarly

11   situated individuals in China who had been persecuted for

12   violating the family planning policy in the same manner that

13   she did.   Therefore, in the absence of support in the record

14   for Wang’s assertion that she would be persecuted, her fear,

15   even if subjectively genuine, is not objectively reasonable.

16    See Ramsameachire, 357 F.3d at 178; Jian Xing Huang v. INS,

17   421 F.3d 125, 128 (2d Cir. 2005) (explaining that “objective

18   reasonableness entails a showing that a reasonable person in

19   the petitioner’s circumstances would fear persecution if

20   returned to his native country”); Yan Fang Zhang v.

21   Gonzales, 452 F.3d 167, 173 (2d Cir. 2006) (noting that

22   although the petitioner established her subjective fear, she


                                   6
1    was required to adduce some “other proof or objective facts”

2    to demonstrate that her fear was objectively reasonable).

3    Thus, because Wang’s fear was not objectively reasonable,

4    the agency did not err in finding that she failed to

5    demonstrate that it was more likely than not that she would

6    be sterilized if her returned to China.      See 8 C.F.R.

7    § 208.16(b)(1); Ramsameachire, 357 F.3d at 178.

8    II.   Dkt No. 09-3416-ag (Con)

9          We review the BIA’s denial of a motion to reopen and

10   remand for abuse of discretion.      Ali v. Gonzales, 448 F.3d

11   515, 517 (2d Cir. 2006).

12         There is no dispute that Wang’s motion to reopen and

13   remand was untimely.   See 8 C.F.R. § 1003.2(c)(2) (providing

14   that an alien seeking to reopen proceedings may file one

15   motion to reopen no later than 90 days after the date on

16   which the final administrative decision was rendered).

17   However, there are no time limitations when a motion to

18   reopen is “based on changed circumstances arising in the

19   country of nationality or in the country to which

20   deportation has been ordered, if such evidence is material

21   and was not available and could not have been discovered or

22   presented at the previous hearing.”      8 C.F.R.


                                      7
1    § 1003.2(c)(3)(ii).

2        The BIA did not abuse its discretion by denying Wang’s

3    motion to reopen and remand because it reasonably found that

4    she failed to submit evidence of changed country conditions.

5    Contrary to Wang’s argument, the BIA has considered

6    generalized country conditions evidence similar to that

7    which she submitted and rejected it as being insufficient

8    evidence of changed country conditions.     See Matter of J-W-

9    S-, 24 I & N Dec. 185 (BIA 2007) and Matter of S-Y-G-, 24 I

10   & N Dec. 247 (BIA 2007)); see also Jian Hui Shao v. Mukasey,

11   546 F.3d 138 (2d Cir. 2008).   Moreover, the BIA did not err

12   in declining to consider the photocopied documents that Wang

13   submitted which did not contain “original signatures, seals,

14   nor authenticating information.”   See 8 C.F.R. § 1287.6;

15   Matter of S-Y-G-, 24 I & N Dec. at 247. 2

16       Accordingly, the BIA did not abuse its discretion in

17   denying Wang’s untimely motion to reopen and remand.

18   See 8 C.F.R. § 1003.2(c)(3)(ii); Ali, 448 F.3d at 517.

19       For the foregoing reasons, the petition for review is


            2
             We decline to address Wang’s argument that she
       fears a significant fine would be imposed that would rise
       to the level of persecution because she failed to exhaust
       that argument before the agency. Lin Zhong v. U.S. Dep’t
       of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).

                                    8
1    DENIED.   As we have completed our review, any stay of

2    removal that the Court previously granted in this petition

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

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

5    oral argument in this petition is DENIED in accordance with

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

7    Circuit Local Rule 34.1(b).

 8                                 FOR THE COURT:
 9                                 Catherine O’Hagan Wolfe, Clerk
10
11
12




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