         08-1757-ag
         Wang v. Holder
                                                                                        BIA
                                                                                A074-857-411
                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.     CITATION TO SUMMARY ORDERS
     FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
     AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.     IN A BRIEF OR OTHER PAPER IN WHICH A
     LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
     ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
     “(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
     TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
     BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
     PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
     HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
     ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
     DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.


 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 10 th day of December, two thousand nine.
 5
 6       PRESENT:
 7                HON. RALPH K. WINTER,
 8                HON. ROBERT A. KATZMANN,
 9                HON. DEBRA ANN LIVINGSTON,
10                              Circuit Judges.
11       ______________________________________
12
13       WEN FANG WANG,
14                Petitioner,
15                                                              08-1757-ag
16                        v.                                    NAC
17
18       ERIC H. HOLDER JR., UNITED STATES
19       ATTORNEY GENERAL, *
20                Respondent.
21       ______________________________________


                      *
                   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 this case.
 1   FOR PETITIONER:           Gary J. Yerman, New York, New York.
 2
 3   FOR RESPONDENT:           Gregory G. Katsas, Assistant
 4                             Attorney General, Civil Division;
 5                             Barry J. Pettinato, Assistant
 6                             Director; Katharine E. Clark, Trial
 7                             Attorney, United States Department
 8                             of Justice, Civil Division, Office
 9                             of Immigration Litigation,
10                             Washington, D.C.
11
12       UPON DUE CONSIDERATION of this petition for review of a

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

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

15   is DENIED.

16       Petitioner, Wen Fang Wang, a native and citizen of the

17   People’s Republic of China, seeks review of a March 27, 2008

18   order of the BIA denying her motion to reopen her removal

19   proceedings.    In re Wen Fang Wang, No. A 074 857 411 (B.I.A.

20   Mar. 27, 2008).    We assume the parties’ familiarity with the

21   underlying facts and procedural history of the case.

22       We review the BIA’s denial of a motion to reopen for

23   abuse of discretion.     Ali v. Gonzales, 448 F.3d 515, 517 (2d

24   Cir. 2006).    Where the BIA considers relevant evidence of

25   country conditions in evaluating a motion to reopen, we

26   review the BIA’s factual findings under the substantial

27   evidence standard.     See Jian Hui Shao v. Mukasey, 546 F.3d

28   138, 169 (2d Cir. 2008).

                                     2
1         We find that the BIA did not err in denying Wang’s

2    untimely motion to reopen.     An alien may only file one

3    motion to reopen and must do so within 90 days of the final

4    administrative decision.     8 C.F.R. § 1003.2(c)(2).   However,

5    there is no time or numerical limitation where the alien

6    establishes materially “changed circumstances arising in the

7    country of nationality.”     8 C.F.R. § 1003.2(c)(3)(ii).

8    Additionally, the deadline may be equitably tolled to

9    accommodate claims of ineffective assistance of counsel, so

10   long as the movant has exercised “due diligence” in

11   vindicating his or her rights.      See Cekic v. INS, 435 F.3d

12   167, 171 (2d Cir. 2006).

13   I.   Ineffective Assistance of Counsel

14        We find no error in the BIA’s conclusion that Wang

15   failed to exercise due diligence in pursuing her ineffective

16   assistance of counsel claim.     See id.   In her motion, Wang

17   asserted that she was unaware that she had been ordered

18   removed in absentia, that her prior attorney had filed in

19   2001 a motion to reopen in an effort to rescind that order,

20   or that he had filed an appeal of the Immigration Judge’s

21   denial of that motion.     The BIA did not abuse its discretion

22   in rejecting that assertion where Wang submitted a signed



                                     3
1    affidavit in support of the 2001 motion and signed the

2    notice of entry of appearance her attorney filed with the

3    BIA on appeal.   Therefore, as the BIA properly found, Wang

4    failed to exercise due diligence in pursuing her ineffective

5    assistance of counsel claim where she knew of her in

6    absentia order, the motion, and the appeal by at least May

7    2001, and provided no explanation for her seven-year delay

8    in filing her motion to reopen.   See Rashid v. Mukasey, 533

9    F.3d 127, 132 (2d Cir. 2008) (finding no exercise of due

10   diligence where fourteen months elapsed from the time the

11   petitioner knew or should have known of the alleged

12   ineffective assistance).   Wang asserts before this Court

13   that she did not sign the affidavit and notice of appearance

14   and that they were fraudulently prepared by her prior

15   attorney.   However, because she made no such claim before

16   the BIA, we decline to consider her argument. Steevenez v.

17   Gonzales, 476 F.3d 114, 117 (2d Cir. 2007) (“To preserve an

18   issue for judicial review, the petitioner must first raise

19   it with specificity before the BIA.”); see also 8 U.S.C. §

20   1252(b)(4)(A) (stating that “the court of appeals shall

21   decide the petition only on the administrative record on

22   which the order of removal is based”).



                                   4
1

2    II.   Changed Country Conditions

3          Additionally, substantial evidence supports the BIA’s

4    finding that Wang failed to demonstrate changed country

5    conditions excusing the untimely filing of her motion.     See

6    8 U.S.C. 1229a(c)(7)(C)(ii); Jian Hui Shao, 546 F.3d at 169.

7    The BIA based its conclusion that Wang had not demonstrated

8    changed country conditions on the fact that it had already

9    considered many of the documents Wang submitted and

10   concluded that such evidence did not show a material change

11   in the family planning policy of the Fujian Province.     This

12   was entirely proper.   We have previously reviewed the BIA’s

13   consideration of evidence similar to that which Wang

14   submitted and have found no error in its conclusion that

15   such evidence was insufficient to establish material changed

16   country conditions or an objectively reasonable fear of

17   persecution. See Jian Hui Shao, 546 F.3d at 169-72

18   (concluding, in a case where similar evidence was submitted,

19   that the BIA had pointed to substantial evidence raising

20   doubts that the petitioner would be persecuted, and noting

21   that “[w]e do not ourselves attempt to resolve conflicts in

22   record evidence, a task largely within the discretion of the


                                   5
1    agency”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275

2    (2d Cir. 2006) (noting that while the BIA must consider

3    evidence such as “the oft-cited Aird affidavit, which [it]

4    is asked to consider time and again[,] . . . it may do so in

5    summary fashion without a reviewing court presuming that it

6    has abused its discretion”).     Nothing in the record compels

7    us to conclude that the BIA ignored the evidence Wang

8    submitted or the arguments she made, evidence and arguments

9    the BIA is asked to consider time and again.     See Xiao Ji

10   Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n.17 (2d

11   Cir. 2006).     Moreover, the BIA did not abuse its discretion

12   in declining to accord significant weight to the affidavit

13   of Wang’s cousin or the village notice because she did not

14   provide the original documents.     See id. at 342 (finding

15   that the weight afforded to the applicant’s evidence in

16   immigration proceedings lies largely within the discretion

17   of the agency).

18       Finally, the BIA’s determination that Wang was

19   ineligible to file a successive asylum application was not

20   in error.     See Yuen Jin v. Mukasey, 538 F.3d 143, 156, 158-




                                     6
1    59 (2d Cir. 2008). **

2         For the foregoing reasons, the petition for review is

3    DENIED.        As we have completed our review, any pending motion

4    for a stay of removal in this petition is DISMISSED as moot.

5    Any pending request for oral argument in this petition is

6    DENIED in accordance with Federal Rule of Appellate

7    Procedure 34(a)(2), and Second Circuit Local Rule 34(b).

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




               **
              We note that Wang claims that she married a U.S.
       citizen, that her U.S. citizen husband filed a visa
       petition on her behalf, and that this petition was
       approved in 2003, and therefore she is eligible for
       adjustment of status. The BIA did not address this claim
       because Wang did not offer any evidence in support of it
       or submit an application for adjustment of status. We do
       not speak to Wang’s eligibility for adjustment of status
       based on her marriage.

                                        7
