    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
                                 3
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


                                 4
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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