2012 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

5-18-2012 

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P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 11-3928

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w . v i l l a no v a . e du/thir dc ir c uit_2012/968NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 1 1

- 3928

___________ MEI YU WANG

- HUANG , Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES , Respondent

____________________________________

On Petit ion for Review of an Order of the Board of Immigration Appeals

(Agency No. A 078

- 952

- 405 ) Immigration Judge: R.K. Malloy

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) May 16, 2012 Before: SCIRICA, CHAGARES an d GREENBERG, Circuit Judges (Opinion filed : May 18, 2012 )

___________

OPINION

___________ PER CURIAM Mei Yu Wang

- Huang, a citizen of China, was placed in removal proceedings after
enter ing the United States without admission or parole . To block her removal, Wang

Huang applied for asylum and related relief, claiming , inter alia , that in China she was2 both subjected to a forced abortion and fined 10,000 yuan for having violated that
count ry’s coercive family planning policy . An immigration judge found that Wang

Huang lacked credibility and denied her applications for relief. The Board of Immigration Appeal s (“BIA”) summarily affirmed an d denied reconsideration. The subsequent petition f or review was dismissed by our Clerk of Court under LAR 107.2(b) because Wang

- Huang’s attorney failed to file a brief

. See Wang

- Huang v. Att’y Gen.

Years later , Wang

- Huang filed a motion to reopen removal proceedings. The BIA gave three reasons for denying the motion : (1) it was untimely; (2) it did not satisfy the exception to the limit ations period , found in 8 C.F.R. § 1003.2(c)(3)(ii) ; and (3) it was not accompanied by a new asylum application, as requ ired by 8 C.F.R. § 1003.2(c)(1). This petition for review followed. , No. 05

- 18 36 (order entered on August 3, 2005).

1 We conclude that the BIA did not abuse its discretion in denying Wang

- Huang’s motion to reopen. As a preliminary matter, we note that Wang

- H uang does not suggest that her motion was timely filed

. See

1 We have jurisdiction under 8 U.S.C. § 1252. Kucana v. Holder , --- U.S.

--- , 13 0 S. Ct. 827, 840 (2010). We review for abuse of discretion the BIA’s denial of a motion to reopen. See Pllumi v. Att’y Gen. , 642 F.3d 155, 158 (3d Cir. 2011). “We give the BIA’s decision broad deference and generally do not disturb it unless it is ‘arb itrary, irrational, or contrary to law.’” Id. (citation omitted). 8 C.F.R. § 1003.2(c)(2) (providing for a ninety

- day limitations period)

. She instead contends that the documents submitted to the BIA satisfy the exception to the limitations period based on previously unavailable, material evidence3 of changed circumstances in China. See

Wang

- Huang does not contest the BIA’s determination that her putative asylum claim is successive

. 8 C.F.R. § 1003.2(c)(3)(ii)

. Those documents are Wang

- Huang’s self

- written , unsworn affidavit and a n unsworn letter from her teenage daughter in China , purport ing to show that interest has accrued on Wang

- Huang’s stil l

unpaid fine and that family planning officials have threatened to “take away” Wang

Huang’s da ughter if the old fine remains un paid.

See Pet’r Br. at 15 ( “ Wang

- Huang clearly indicated in her motion [to reopen] that she was relying on the claim articulated in her 2003 [asylum] application . . . .”). A successive asylum claim underlying an untimely motion to reopen must be supported by new evidence reflectin g that current circumstances in China are different from those extant at the time of the removal proceedings. Liu v. Att’y Gen.

In addition, it is noteworthy that Wang

- Huang’s original claim was denied on adverse

- cred ibility grounds. Although a claim premised on an entirely new theory is not necessarily tainted on reopening by an earlier credibility finding, , 555 F.3 d 145, 150 (3d Cir. 2009).

see Guo v. Ashcroft , 386 F.3d 556, 562 (3d Cir. 2004) , the BIA may reasonably expect an alien who is proceeding on reopening with the very same theory to make an attempt to rehabilitate her credibility. See, e.g. , Zhang v, Mukasey , 543 F.3d 851, 855 (6th Cir. 2008); Lemus v. Gonzales Here, Wang

- Huang ’s motion to reopen did noth ing to rehabilitate her credibility. Furthermore, the BIA specifically noted that neither of the new statements accompanying , 489 F.3d 399, 401 (1st Cir. 2007).4 her motion was “signed under penalt[y] of perjury.” J

. A

. at 3. The BIA had reason to doubt t he authenticity of the statements , g iven that Wang

- Huang was found to have submitted fabricated evidence to the IJ during the original removal proceedings. But even if the f acts presented in Wang

- Huang’s motion to reopen were accepted as true, see Shardar v. Att’y Gen. , 503 F.3d 308, 313 (3 d Cir. 2007), the BIA nevertheless did not abuse its discretion by holding that circumstances in China have , for the purpose of her asylum claim, only persisted, not meaningfully worsened. Cf. Pllumi As for Wang

- Huang’s failure to sub mit to the BIA a new asylum application, she argues that doing so “was not necessary .” Pet’r Br. at 15. That explanation is unpersuasive in light of BIA precedent holding that the “failure to submit an application for relief, as required by [8 C.F.R. § 1 003.2(c)(1)], will typically result in the Board’s denial of the motion.” , 642 F.3d at 161.

In re Yewondwosen , 21 I. & N. Dec. 1025, 1026 (BIA 1997) (en banc) ; see also Jiang v. Holder , 639 F.3d 751, 757 (7th Cir. 2011); Liu v. Holder , 560 F.3d 485, 491 (6th Cir. 2009); Ro mero - Ruiz v. Mukasey , 538 F.3d 1057, 1064 (9th Cir. 2008); Palma

- Mazariegos v. Keisler , 504 F.3d 144, 147 (1st Cir. 2007) (per curiam); Waggoner v. Gonzales , 488 F.3d 632, 639 (5t h Cir. 2007). We also note that t he pertinent portion of the regulation is p hrased in mandatory language: “A motion to
reopen . . . must be accompanied by the appropriate application for relief and all supporting documentation.” (emphasis added). T he BIA ’s enforcement of the te chnical requirements for filing motions to reopen

— w here the alien’s nonc ompliance is admitted

— surely does not constitute an abuse of discretion

.5 For the reasons given in this opinion, t he petition for review will be denied

.