NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 12-3660

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DE HUO WANG,

 Petitioner

v.

ATTORNEY GENERAL OF THE 

UNITED STATES OF AMERICA,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A098-977-101)

Immigration Judge: Honorable Dorothy Harbeck

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 1, 2013

Before: SCIRICA, VANASKIE and COWEN, Circuit Judges

(Opinion filed March 7, 2013)

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OPINION

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PER CURIAM
2

De Huo Wang, a native and citizen of China, petitions for review of an order of 

the Board of Immigration Appeals (BIA) denying a motion to reopen. For the reasons 

that follow, we will deny the petition for review.

I.

Inasmuch as we are writing primarily for the parties and have previously discussed 

the background of the case, see De Huo Wang v. Att’y Gen., No. 11-3217, 485 F. App’x 

580 (3d Cir. 2012), we will recite the facts only as necessary to our decision. Wang was

charged as removable under 8 U.S.C. § 1227(a)(1)(A), as an alien who was inadmissible 

at the time of entry into the United States. He conceded removability and applied for

asylum, withholding of removal, and relief under the Convention Against Torture (CAT), 

arguing that he was and would be persecuted in China as a result of the country’s 

coercive population control policy. An Immigration Judge (IJ) found that Wang’s

testimony lacked credibility and determined that, even if he had been credible, his

allegations would not entitle him to relief. The BIA found no clear error in the IJ’s 

adverse credibility determination and dismissed Wang’s appeal in July 2011. Wang’s 

petition for review from that order was denied by this Court because substantial evidence 

supported the agency’s adverse credibility determination. Wang, 485 F. App’x at 583.

In 2012, while his petition for review was pending before this Court, Wang filed 

with the BIA a motion to reopen proceedings seeking to amend his applications for 

asylum and withholding of removal and to present evidence of changed country 
3

conditions. Wang claimed that he began attending a Christian church in August 2011, 

and that he feared being persecuted by the Chinese government for his practice of 

Christianity. The BIA concluded that Wang’s motion was untimely and that he did not 

establish that reopening was nevertheless warranted based on changed circumstances.

Wang now seeks review of the BIA’s decision denying his motion to reopen.1

An alien generally may file only one motion to reopen and must file it with the 

BIA ―no later than 90 days after the date on which the final administrative decision was 

rendered[.]‖ 8 C.F.R. § 1003.2(c)(2). The time and number requirements are waived for 

motions to reopen that rely on evidence of ―changed circumstances arising in the country 

of nationality . . . if such evidence is material and was not available and could not have 

been discovered or presented at the previous hearing[.]‖ 8 C.F.R. § 1003.2(c)(3)(ii).

Wang does not dispute that his motion to reopen was untimely, and we agree with 

the BIA that the evidence he submitted ―does not show a material change in China 

regarding the treatment of unsanctioned religious groups since [Wang’s] June 2009 

hearing.‖ A.R. 3-4. Although Wang argued that the persecution of Christians has 

escalated, the BIA noted that the record indicated ―ongoing and substantially similar 

treatment of unsanctioned religious groups.‖ A.R. 4. In fact, Wang submitted in support 

 

1 We have jurisdiction pursuant to 8 U.S.C. § 1252(a) to review the BIA’s denial of 

Wang’s motion to reopen, and we apply the abuse of discretion standard to our review. 

See Fadiga v. Att’y Gen., 488 F.3d 142, 153 (3d Cir. 2007). Thus, to succeed on his 

petition for review, Wang must show that the BIA’s decision was ―arbitrary, irrational, or 

contrary to law.‖ Id. (quotation marks and citation omitted).
4

of his motion to reopen a report produced by Amnesty International in 2007, which 

indicated that the Chinese government ―continued to crack down on religious observance 

outside officially sanctioned channels.‖ A.R. 99 (emphasis added). Moreover, the 

Department of State’s 2006 Country Reports on Human Rights Practices, which Wang 

submitted in support of his original application for relief, described ongoing harassment 

of unsanctioned religious groups. A.R. 383-87. This, along with other record evidence, 

amply supports the BIA’s determination that Wang failed to demonstrate a change in 

circumstances ―arising in‖ China. See 8 C.F.R. § 1003.2(c)(3)(ii). Thus, the only 

changes in circumstance Wang could demonstrate were personal and do not suffice to

excuse the time limitation on his motion to reopen. Liu v. Att’y Gen., 555 F.3d 145, 

149–51 (3d Cir. 2009). 

Because the denial of Wang’s motion to reopen as untimely was not an abuse of 

discretion, see Fadiga, 488 F.3d at 153, we will deny his petition for review.2

 

2 We need not address the BIA’s alternate determination that Wang failed to establish 

prima facie eligibility for relief because his motion to reopen was untimely. Any error in 

that aspect of the BIA’s decision—including its reliance on the IJ’s prior credibility 

determination—would have been harmless and would not justify granting the petition for 

review. Li Hua Yuan v. Att’y Gen., 642 F.3d 420, 427 (3d Cir. 2011) (―[W]e will view 

an error as harmless and not necessitating a remand to the BIA when it is highly probable 

that the error did not affect the outcome of the case.‖).