18-2691

Fang v. Wilkinson

BIA

Lamb, IJ

A073 552 824

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.

At a stated term of the United States Court of Appeals 

for the Second Circuit, held at the Thurgood Marshall United 

States Courthouse, 40 Foley Square, in the City of New York, 

on the 19th day of February, two thousand twenty-one.

PRESENT:

ROSEMARY S. POOLER,

ROBERT D. SACK,

MICHAEL H. PARK,

Circuit Judges.

_____________________________________

XIN JING FANG,

Petitioner,

v. 18-2691

NAC

ROBERT M.WILKINSON, ACTING 

UNITED STATES ATTORNEY GENERAL,1

Respondent.

_____________________________________

FOR PETITIONER: John Chang, Esq., New York, NY.

FOR RESPONDENT: Jeffrey Bossert Clark, Acting 

Assistant Attorney General; Holly 

1 Pursuant to Federal Rule of Appellate Procedure 43(c)((2), Robert M. Wilkinson is automatically substituted as 

Respondent. 
2

M. Smith, Kohsei Ugumori, Senior 

Litigation Counsel, Office of 

Immigration Litigation, United 

States Department of Justice, 

Washington, DC.

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 Xin Jing Fang, a native and citizen of the 

People’s Republic of China, seeks review of an August 16, 

2018, decision of the BIA affirming an August 22, 2017, 

decision of an Immigration Judge (“IJ”) denying Fang’s 

untimely motion to reopen. In re Xin Jing Fang, No. A 073 

552 824 (B.I.A. Aug. 16, 2018), aff’g No. A 073 552 824

(Immig. Ct. N.Y. City Sept. 18, 2017). We assume the parties’ 

familiarity with the underlying facts and procedural history 

in this case.

We review the denial of a motion to reopen for abuse of 

discretion and the agency’s determination of country 

conditions for substantial evidence. See Jian Hui Shao v. 

Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008). It is 

undisputed that Fang’s 2014 motion to reopen was untimely 

because she filed it more than 18 years after she accepted a 
3

final order of voluntary departure in 1996. See 8 U.S.C. 

§ 1229a(c)(7)(C)(i) (setting 90-day deadline for motions to 

reopen); 8 C.F.R. §§ 1003.2(c)(2), 1003.23(b)(1) (same). 

While Fang argues for exceptions to this deadline based on 

ineffective assistance of counsel and changed conditions in 

China, we find no error in the BIA’s conclusion that she did 

not satisfy either exception.

Ineffective assistance of counsel may equitably toll the 

time limitation on a motion to reopen if the movant has 

exercised “due diligence” in pursuing the claim. See Rashid 

v. Mukasey, 533 F.3d 127, 130-31 (2d Cir. 2008). The movant 

“is required to exercise due diligence both before and after 

[s]he has or should have discovered ineffective assistance of 

counsel.” Id. at 132. “[T]here is no period of time which 

. . . is per se unreasonable, and, therefore, disqualifies a 

petitioner from equitable tolling–or, for that matter, any 

period of time that is per se reasonable.” Jian Hua Wang v. 

BIA, 508 F.3d 710, 715 (2d Cir. 2007). 

The BIA did not abuse its discretion in concluding that 

Fang failed to establish due diligence throughout the entire 

18-year period she sought to toll. See Ke Zhen Zhao v. U.S. 
4

Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (“An abuse 

of discretion may be found . . . where the Board’s decision 

provides no rational explanation, inexplicably departs from 

established policies, is devoid of any reasoning, or contains 

only summary or conclusory statements; that is to say, where 

the Board has acted in an arbitrary or capricious manner.” 

(citations omitted)). Fang claimed to have consulted at 

least ten law offices from 1997 to 2014; however, she 

submitted nothing to corroborate her statement that she had 

these consultations, and she stated that the lawyers declined 

to assist her but gave no detail about what information she 

gave them or what was discussed. Given Fang’s minimal 

evidence and detail and the length of time she sought to toll, 

the BIA reasonably determined that Fang had not shown 

diligence. See Jian Hua Wang, 508 F.3d at 715 (observing 

that reasonableness of delay must be assessed “under the 

circumstances”).

The time limitation for filing a motion to reopen does 

not apply if reopening is sought to apply for asylum and the 

motion “is based on changed country conditions arising in the 

country of nationality or the country to which removal has 
5

been ordered, if such evidence is material and was not 

available and would not have been discovered or presented at 

the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 

see also 8 C.F.R. §§ 1003.2(c)(3)(ii), 1003.23(b)(4). The 

agency did not err in finding that Fang failed to demonstrate 

a change in conditions because her motion and country 

conditions evidence cited only one incident in China—the 2014 

demolition of a large, government-sponsored church. “In 

determining whether evidence accompanying a motion to reopen 

demonstrates a material change in country conditions that 

would justify reopening, [the agency] compare[s] the evidence 

of country conditions submitted with the motion to those that 

existed at the time of the merits hearing below.” In re SY-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007). Fang did not 

submit any evidence of the conditions for Christians in China 

at the time of her 1996 hearing before the IJ, and the BIA 

reasonably concluded that the demolition of one church was 

not sufficient to establish a change particularly where Fang 

did not allege that she intended to attend a church of similar 

size or prominence. See id.; see also Jian Hui Shao, 546 

F.3d at 157–58 (“[W]hen a petitioner bears the burden of 
6

proof, his failure to adduce evidence can itself constitute 

the ‘substantial evidence’ necessary to support the agency’s 

challenged decision.”). 

For the foregoing reasons, the petition for review is 

DENIED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe,

Clerk of Court