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.

08-2477-ag

Wang v. Holder

BIA

A077 008 441

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 7 day of January, two thousand ten. th

PRESENT:

RALPH K. WINTER,

PIERRE N. LEVAL,

REENA RAGGI,

Circuit Judges.

_________________________________________

FENG QING WANG,

Petitioner, 

 v. 08-2477-ag

NAC

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,*

Respondent.

_________________________________________

FOR PETITIONER: Norman Kwai Wing Wong, New York, New

York.
 Because Wang did not timely petition for review of 1

the August 8, 2001 order of the BIA dismissing as moot her

appeal from an immigration judge’s denial of asylum,

withholding of removal, and relief under the United Nations

Convention Against Torture, our review is limited to the

BIA’s decision not to reopen Wang’s removal proceedings.

2

FOR RESPONDENT: Gregory G. Katsas, Assistant

Attorney General; Greg D. Mack,

Senior Litigation Counsel; Hillel R.

Smith, Attorney, Office of

Immigration Litigation, United

States Department of Justice,

Washington, D.C.

UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED. 

Petitioner Feng Qing Wang, a native and citizen of the

People’s Republic of China, seeks review of an April 30,

2008 order of the BIA denying her motion to reopen. In re

Feng Qing Wang, No. A077 008 441 (B.I.A. Apr. 30, 2008). We

review the BIA’s denial of Wang’s motion to reopen for abuse

of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 1

2005). In doing so, we assume the parties’ familiarity with

the underlying facts and the record of prior proceedings,

which we reference only to the extent necessary to explain

our decision.
3

There is no dispute that Wang’s February 2008 motion to

reopen was untimely, as the IJ’s order of removal became

final in August 2001. 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). The time period for filing a motion to reopen

may be equitably tolled, however, where an alien claims

ineffective assistance of counsel. See Rashid v. Mukasey,

533 F.3d 127, 130 (2d Cir. 2008). To establish entitlement

to such tolling, an alien must demonstrate, inter alia, that

she exercised due diligence in pursuing her claim. Id. at

131-32 (providing that an alien is required to demonstrate

“due diligence” in pursuing her claims during “both the

period of time before the ineffective assistance of counsel

was or should have been discovered and the period from that

point until the motion to reopen is filed.”). 

Because Wang does not claim to have taken any action in

her removal proceedings between the BIA’s August 2001

dismissal of her appeal from the IJ’s order of removal and

her 2007 request for her immigration file, the BIA concluded

that she failed to prove that she exercised due diligence in

pursuing reopening of her removal proceedings. On this
 As Wang’s brief does not address the BIA’s finding 2

that she failed to demonstrate changed country conditions

related to her claim based on religion, any challenge to

that finding is deemed waived. See Norton v. Sam’s Club,

145 F.3d 114, 117 (2d Cir. 1998).

4

record, we cannot conclude that the denial of Wang’s motion

to reopen was an abuse of the BIA’s discretion. See Jian

Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007); Cekic v.

INS, 435 F.3d 167, 171-72 (2d Cir. 2006). 

Equally unavailing is Wang’s challenge to the BIA’s

finding that she failed to demonstrate changed country

conditions sufficient to excuse the untimely filing of her

motion to reopen. See 8 C.F.R. § 1003.2(c)(3)(ii)

(providing that there is no time limit for filing a motion

to reopen if it is “based on changed circumstances arising

in the country of nationality or in the country to which

deportation has been ordered, if such evidence is material

and was not available and could not have been discovered or

presented at the previous hearing”). While the births of

her U.S. citizen children may constitute a change in

personal circumstances, they do not constitute a change in

country conditions. See Li Yong Zheng v. U.S. Dep’t of 2

Justice, 416 F.3d 129, 130-31 (2d Cir. 2005); see also Wei

Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir. 2006). 
5

Furthermore, we have previously reviewed the BIA’s

consideration of documentary evidence similar to that

submitted by Wang and found no error in its conclusion that

such evidence is insufficient to establish either material

changed country conditions or a reasonable possibility of

persecution. See Jian Hui Shao v. Mukasey, 546 F.3d 138,

169-73 (2d Cir. 2008). 

Although Wang further submits that her due process

rights were violated by her lack of opportunity to pursue

asylum on account of her fear of persecution as a Catholic,

this argument is also without merit. Wang has no liberty or

property interest in seeking a discretionary grant of leave

to reopen. Cf. Yuen Jin v. Mukasey, 538 F.3d 143, 157 (2d

Cir. 2008) (holding that “an alien who has already filed one

asylum application, been adjudicated removable and ordered

deported, and who has nevertheless remained in the country

illegally for several years, does not have a liberty or

property interest in a discretionary grant of asylum”); see

also Gomez-Palacios v. Holder, 560 F.3d 354, 361 n.2 (5th

Cir. 2009); Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir.

2008). In any event, she has received ample process. Prior

to her motion to reopen, Wang filed and had adjudicated an
6

asylum application in which she identified herself as a

Catholic but chose not to seek relief on that ground. See

Yuen Jin, 538 F.3d at 157.

For the foregoing reasons, the petition for review is

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

removal that the Court previously granted in this petition

is VACATED, and any pending motion for a stay of removal in

this petition is DISMISSED as moot. Any pending request for

oral argument in this petition is DENIED in accordance with

Federal Rule of Appellate Procedure 34(a)(2), and Second

Circuit Local Rule 34(b).

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

 By:___________________________