Aiwei Wan v. Sessions
694 F. App'x 52
| 2d Cir. | 2017Background
- Petitioner Yan Hua Wang, a Chinese national, was removed in absentia in 1999 and filed motions in 2013 to rescind the in‑absentia order and to reopen proceedings to apply for asylum.
- Wang conceded she received notice of the 1999 hearing but argued exceptional circumstances (ineffective prior counsel) excused her failure to appear.
- Wang’s rescission motion was filed almost 14 years after the removal order; her reopening motion was filed more than 13 years after the order became final.
- She sought asylum based on (1) births of two U.S.-born children allegedly violating China’s population control policy, and (2) her conversion to Catholicism while in the U.S.
- The IJ denied both the motion to rescind and the motion to reopen; the BIA affirmed. Wang petitioned for review to the Second Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Motion to rescind in‑absentia order (timeliness/exceptional circumstances) | Wang argued prior counsel’s ineffective assistance excused her failure to appear and warranted equitable tolling/exceptional‑circumstances relief | Government argued the motion was untimely and Wang failed to show due diligence after discovering counsel’s ineffectiveness | Denied — Wang failed to show due diligence (did not inquire 1999–2005 and waited until 2013 to act) |
| Motion to reopen for asylum based on changed country conditions (children and religion) | Wang argued changed conditions re: China’s population control and risk from her conversion to Catholicism made the late filing excusable and established prima facie eligibility | Government argued she failed to show material changed conditions or prima facie eligibility; no evidence China knew or would learn of her religious practice; no evidence of changed enforcement presented at prior proceedings | Denied — agency reasonably found no material change re: population control and insufficient evidence that Chinese authorities are or would be aware of her religious practice; prima facie eligibility not shown |
Key Cases Cited
- Alrefae v. Chertoff, 471 F.3d 353 (2d Cir. 2006) (standards of review and procedure discussion)
- Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008) (standard for changed country conditions and reopening; due diligence analysis)
- Rashid v. Mukasey, 533 F.3d 127 (2d Cir. 2008) (due diligence requirement when ineffective assistance is alleged)
- Cekic v. INS, 435 F.3d 167 (2d Cir. 2006) (due diligence principle in counsel‑ineffectiveness context)
- Jian Hua Wang v. BIA, 508 F.3d 710 (2d Cir. 2007) (petitioner’s duty to act promptly after discovering ineffective assistance)
- Hongsheng Leng v. Mukasey, 528 F.3d 135 (2d Cir. 2008) (need to show authorities are aware or likely to become aware of petitioner’s religious practice for asylum/related relief)