2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-18-2012

Mei Wang-Huang v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-3928

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-3928

___________

MEI YU WANG-HUANG,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A078-952-405)

Immigration Judge: R.K. Malloy

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

May 16, 2012

Before: SCIRICA, CHAGARES and 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 

entering the United States without admission or parole. To block her removal, WangHuang applied for asylum and related relief, claiming, inter alia, that in China she was 
2

both subjected to a forced abortion and fined 10,000 yuan for having violated that 

country’s coercive family planning policy. An immigration judge found that WangHuang lacked credibility and denied her applications for relief. The Board of 

Immigration Appeals (“BIA”) summarily affirmed and denied reconsideration. The 

subsequent petition for 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 limitations period, found in 8 C.F.R. § 1003.2(c)(3)(ii); and (3) it was not 

accompanied by a new asylum application, as required by 8 C.F.R. § 1003.2(c)(1). This 

petition for review followed.

, 

No. 05-1836 (order entered on August 3, 2005).

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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-Huang 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. ---, 130 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 ‘arbitrary, 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 evidence 
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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 an unsworn letter from her teenage 

daughter in China, purporting to show that interest has accrued on Wang-Huang’s stillunpaid fine and that family planning officials have threatened to “take away” WangHuang’s daughter if the old fine remains unpaid. 

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 reflecting 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-credibility grounds. Although a claim premised on an entirely new theory is not 

necessarily tainted on reopening by an earlier credibility finding, 

, 555 F.3d 

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 nothing to rehabilitate her credibility. 

Furthermore, the BIA specifically noted that neither of the new statements accompanying 

, 489 F.3d 399, 401 (1st Cir. 2007).
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her motion was “signed under penalt[y] of perjury.” J.A. at 3. The BIA had reason to 

doubt the authenticity of the statements, given that Wang-Huang was found to have 

submitted fabricated evidence to the IJ during the original removal proceedings. But 

even if the facts presented in Wang-Huang’s motion to reopen were accepted as true, see

Shardar v. Att’y Gen., 503 F.3d 308, 313 (3d 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 submit 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. § 1003.2(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); Romero-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 (5th Cir. 2007). We also note that the 

pertinent portion of the regulation is phrased in mandatory language: “A motion to 

reopen . . . must be accompanied by the appropriate application for relief and all 

supporting documentation.” (emphasis added). The BIA’s enforcement of the technical 

requirements for filing motions to reopen—where the alien’s noncompliance is 

admitted—surely does not constitute an abuse of discretion.
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For the reasons given in this opinion, the petition for review will be denied.