     15-622
     Wang v. Lynch
                                                                                       BIA
                                                                               A079 400 344
                          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   24th day of February, two thousand sixteen.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            BARRINGTON D. PARKER,
10            DENNY CHIN,
11                 Circuit Judges.
12   _____________________________________
13
14   DONG WANG,
15            Petitioner,
16
17                   v.                                              15-622
18                                                                   NAC
19
20   LORETTA E. LYNCH, UNITED STATES
21   ATTORNEY GENERAL,
22            Respondent.
23   _____________________________________
24
25   FOR PETITIONER:                    Joshua Bardavid, New York, New York.
26
27   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
28                                       Assistant Attorney General; Russell
29                                       J.E. Verby, Senior Litigation
30                                       Counsel; Laura Halliday Hickein,
31                                       Trial Attorney, Office of
32                                       Immigration Litigation, United
1                                   States Department of Justice,
2                                   Washington, D.C.
3
4         UPON DUE CONSIDERATION of this petition for review of a

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

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

7    DENIED.

8         Petitioner Dong Wang, a native and citizen of China, seeks

9    review of a February 5, 2015, decision of the BIA denying his

10   motion to reopen.    In re Dong Wang, No. A079 400 344 (B.I.A.

11   Feb. 5, 2015).     We assume the parties’ familiarity with the

12   underlying facts and procedural history in this case.

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

14   of   discretion,    “mindful    that   motions     to    reopen     ‘are

15   disfavored.’”    Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006)

16   (quoting INS v. Doherty, 502 U.S. 314, 323 (1992)).          An alien

17   seeking to reopen proceedings may file one motion to reopen no

18   later than 90 days after the final administrative decision is

19   rendered.       8 U.S.C.   § 1229a(c)(7)(A),       (C)(i);   8 C.F.R.

20   § 1003.2(c)(2).      These     limitations   may    be    excused    to

21   accommodate a claim of ineffective assistance of counsel.

22   Rashid v. Mukasey, 533 F.3d 127, 130 (2d Cir. 2008); Jin Bo Zhao


                                       2
1    v. INS, 452 F.3d 154, 159-60 (2d Cir. 2006).    The limitations

2    may also be excused if the motion to reopen is “based on changed

3    country conditions arising in the country of nationality or the

4    country to which removal has been ordered, if such evidence is

5    material and was not available and would not have been

6    discovered or presented at the previous proceeding.”    8 U.S.C.

7    § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).          Wang’s

8    2015 motion was untimely and number barred: it was his second

9    motion to reopen, and he filed it nearly thirteen years after

10   the agency ordered him removed in absentia.

11       Wang argues that the time and numerical limitations should

12   be excused based on his prior counsel’s ineffectiveness.       In

13   applying   the   doctrine   of   equitable   tolling   to   these

14   limitations, we engage in a two-step inquiry: first, we

15   determine “whether and when the ineffective assistance ‘[was],

16   or should have been, discovered by a reasonable person in the

17   situation.’   Then, petitioner bears the burden of proving that

18   he has exercised due diligence in the period between discovering

19   the ineffectiveness of his representation and filing the motion

20   to reopen.”   Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir.

21   2007) (quoting Iavorski v. INS, 232 F.3d 124, 134 (2d Cir.

                                      3
1    2000)).    The petitioner must demonstrate “due diligence” in

2    pursuing a claim “during the entire period he . . . seeks to

3    toll.”    Rashid, 533 F.3d at 132.

4        Here, the BIA reasonably found that Wang failed to exercise

5    due diligence in discovering his prior counsel’s error.             Wang

6    knew about the October 2002 in absentia removal order by

7    November 2002, when first he moved to reopen proceedings.           Wang

8    alleges that his attorney did not confess that it was his own

9    mistake, rather than an error on the hearing notice, that caused

10   his office not to notify Wang of the hearing.           The BIA, however,

11   had the discretion to conclude that concealment of what actually

12   transpired in 2002 “should have been . . . discovered by a

13   reasonable person in the situation” before 2015.           Iavorski, 232

14   F.3d at 134 (rejecting petitioner’s request to toll a two-year

15   period from when he “should have known that he had been a victim

16   of ineffective assistance of counsel”).                  Nor did Wang’s

17   reference to a 2008 FOIA request demonstrate due diligence.

18   Wang did not submit evidence of that request, and an “attorney’s

19   unsworn statements in a brief are not evidence.”             Kulhawik v.

20   Holder, 571 F.3d 296, 298 (2d Cir. 2009).           Moreover, the BIA

21   justifiably    doubted   that   a       single   FOIA     request   would

                                         4
1    demonstrate due diligence.     Wang did not pursue the matter

2    between 2004 (when his motions to reopen and reconsider were

3    denied) and 2008 (when he made the alleged FOIA request), or

4    between 2008 and 2013 (when he hired a new attorney).   Rashid,

5    533 F.3d at 132 (requiring due diligence “during the entire

6    period” a petitioner “seeks to toll”).   By 2013, nearly eleven

7    years had passed since Wang first learned about the in absentia

8    removal order.   “[E]quity is not intended for those who sleep

9    on their rights.”   Covey v. Arkansas River Co., 865 F.2d 660,

10   662 (5th Cir. 1989).

11       Wang also argued that a material change in conditions for

12   Christians in China excuses the time and number limitations on

13   his motion to reopen.   The BIA was within its discretion reject

14   this argument.   The BIA acknowledged that Wang’s documents

15   “generally reference a ‘worsening’ in spots” for Chinese

16   Christians.   But the question on a motion to reopen is not

17   whether conditions have worsened, but rather whether they have

18   materially changed since the original merits hearing.   8 U.S.C.

19   § 1229a(c)(7)(C)(ii); Matter of S-Y-G-, 24 I. & N. Dec. 247,

20   253 (BIA 2007) (to determine “whether evidence accompanying a

21   motion to reopen demonstrates a material change,” the agency

                                    5
1    “compare[s] the evidence of country conditions submitted with

2    the motion to those that existed at the time of the merits

3    hearing below”).   Wang submitted reports of country conditions

4    in 2012 and 2013, but none as of 2002.   The BIA understandably

5    concluded that without evidence of that baseline, it could not

6    draw the necessary comparison.

7        Wang argues that he did not need to submit evidence of 2002

8    conditions because the more recent reports demonstrate that

9    “the situation has worsened.”      He quotes that phrase from

10   Poradisova v. Gonzales, 420 F.3d 70, 81 (2d Cir. 2005).    But

11   a footnote to that sentence in Poradisova defeats Wang’s

12   argument.   It makes clear that the record before the agency in

13   that case included evidence of conditions as of the Poradisovs’

14   merits hearing.    Id. at 81 n.9 (“The 2001 State Department

15   Report, in particular, devotes far more space to reports of

16   antisemitic abuses and recounts far more specific incidents

17   than did the 1997 and 1998 Reports introduced with the

18   Poradisovs’ original application.”).

19       For the foregoing reasons, the petition for review is

20   DENIED.   As we have completed our review, any stay of removal

21   that the Court previously granted in this petition is VACATED,

                                    6
1   and any pending motion for a stay of removal in this petition

2   is DISMISSED as moot.   Any pending request for oral argument

3   in this petition is DENIED in accordance with Federal Rule of

4   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

5   34.1(b).

6                               FOR THE COURT:
7                               Catherine O=Hagan Wolfe, Clerk




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