14-1304 

Wan v. Sessions 

BIA 

A073 533 991

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 

9th 4 day of August, two thousand seventeen. 

5 

6 PRESENT: 

7 JON O. NEWMAN,

8 DENNIS JACOBS, 

9 PIERRE N. LEVAL,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 AIWEI WAN, 

14 Petitioner, 

15 

16 v. 14-1304 

17 NAC 

18 

19 JEFFERSON B. SESSIONS III, 

20 UNITED STATES ATTORNEY GENERAL, 

21 Respondent. 

22 _____________________________________ 

23 

24 FOR PETITIONER: Theodore N. Cox, New York, New York. 

25 

26 FOR RESPONDENT: Joyce R. Branda, Acting Assistant 

27 Attorney General; Mary Jane Candaux, 

28 Assistant Director; Michael C. 

29 Heyse, Trial Attorney, Office of 

30 Immigration Litigation, United 

31 States Department of Justice, 

32 Washington, D.C. 
2

10242016-21 

1 UPON DUE CONSIDERATION of this petition for review of a 

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

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

4 DENIED. 

5 Petitioner Aiwei Wan, a native and citizen of China, seeks 

6 review of an April 10, 2014, decision of the BIA denying her 

7 motion to reconsider and reopen. In re Aiwei Wan, No. A073 533 

8 991 (B.I.A. Apr. 10, 2014). We assume the parties’ familiarity 

9 with the underlying facts and procedural history in this case. 

10 The applicable standards of review are well established. 

11 See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 

12 2008). Wan filed with the BIA a motion to reconsider the denial 

13 of her second motion to reopen as untimely and a third motion 

14 to reopen. In support, Wan submitted evidence related to her 

15 claim that she fears persecution based on the birth of her 

16 children in the United States purportedly in violation of 

17 China’s population control program. At bottom, the issue 

18 underlying both reconsideration and reopening is whether Wan’s 

19 proceedings should have been reopened to allow her to apply for 

20 asylum based on a change in conditions in China. 

21 It is undisputed that Wan’s motions to reopen were untimely 

22 and number barred because they were her second and third motions 

23 filed more than a decade after her deportation order became 
3

10242016-21 

1 final. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. 

2 § 1003.2(c)(2). These time and numerical limitations do not 

3 apply if the motion is to reopen proceedings in order to apply 

4 for asylum “based on changed country conditions arising in the 

5 country of nationality or the country to which removal has been 

6 ordered, if such evidence is material and was not available and 

7 would not have been discovered or presented at the previous 

8 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. 

9 § 1003.2(c)(3)(ii). 

10 For largely the same reasons as this Court set forth in Jian 

11 Hui Shao, we find no error in the agency’s determination that 

12 Wan failed to demonstrate a material change in country 

13 conditions or her prima facie eligibility for relief. See 546 

14 F.3d at 158-72. As with the evidence discussed in Jian Hui 

15 Shao, Wan’s evidence related to Zhejiang Province is 

16 insufficient because it does not discuss the use of force in 

17 the enforcement of the family planning policy. See id. at 

18 160-61, 165-66, 171-72. 

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, 

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

23 is DISMISSED as moot. Any pending request for oral argument 
4

10242016-21 

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

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

3 34.1(b). 

4 FOR THE COURT: 

5 Catherine O’Hagan Wolfe, Clerk