Meng Hua Wan v. Holder
2015 U.S. App. LEXIS 790
| 1st Cir. | 2015Background
- Wan, a Chinese national, entered the U.S. on a visitor visa in 1997, overstayed, and worked without authorization.
- Removal proceedings were instituted; Wan provided an address with an incorrect ZIP code (02117) and did not correct it after warnings.
- NTA and subsequent hearing notices were mailed to Wan; he received notices but did not update his address, despite warnings that failure to attend could trigger removal in absentia.
- An in absentia removal order was entered after Wan failed to appear for the March 20 and May 1, 2001 hearings; notices were mailed to the correct ZIP 02170.
- Approximately 11 years later, Wan moved to reopen in 2013 on grounds including ineffective assistance of counsel; the IJ denied as untimely, BIA denied, and this court later remanded for consideration of changed country conditions.
- The BIA on remand found no material change in China since removal; Wan challenged only on exhaustion, notice, tolling, and sometimes on factfinding; the court reviews motions to reopen for abuse of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wan exhausted impermissible factfinding claim | Wan asserted BIA factfinding error occurred. | Government contends exhaustion requires reconsideration motion; claim not properly raised. | Court lacks jurisdiction over factfinding claim; unexhausted and dismissed. |
| Whether Wan had proper notice to warrant reopening for lack of notice | Notice to May 1 hearing sent to ZIP 02170 was defective due to incorrect ZIP previously provided. | Wan received original March 20 notice and cannot fault mailings tied to his own address; no due process error. | No abuse of discretion; no exception to filing deadline due to lack of notice. |
| Whether equitable tolling could excuse late reopening | Ineffective assistance of counsel entitles tolling relief. | No due diligence; long delay shows absence of diligence; tolling not warranted. | Equitable tolling not available; delay not excused. |
| Whether changed country conditions could extend time to reopen | Changed conditions in China justify extension. | No material change; no extension justified. | Changed country conditions claim abandoned; no extension. |
| Whether the DAPA reference affects the petition | Petitioner raised DAPA relief considerations. | DAPA filing is outside current review; not dispositive. | Proceedings addressed without prejudicing DAPA eligibility; no impact on denial of petitions. |
Key Cases Cited
- Mazariegos-Paiz v. Holder, 734 F.3d 57 (1st Cir. 2013) (agency may correct its bevues; exhaustion considered when merits addressed)
- Xue Su Wang v. Holder, 750 F.3d 87 (1st Cir. 2014) (equitable tolling and due diligence principles in immigration appeals)
- Neves v. Holder, 613 F.3d 30 (1st Cir. 2010) (due diligence prerequisite to equitable tolling)
- Guerrero-Santana v. Gonzales, 499 F.3d 90 (1st Cir. 2007) (stringent limits on equitable tolling in immigration context)
- Irwin v. Dept. of Veterans Affairs, 498 U.S. 89 (1990) (equitable tolling principles apply sparingly)
- Kozak v. Gonzáles, 502 F.3d 34 (1st Cir. 2007) (timeliness and notice standards in removal proceedings)
- Doherty v. INS, 502 U.S. 314 (1992) (standard for reviewing motions to reopen)
- Ahmed v. Holder, 611 F.3d 90 (1st Cir. 2010) (abandonment considerations in immigration review)
- United States v. Zannino, 895 F.2d 1 (1st Cir. 1990) (procedural default rules on review)
- Sidabutar v. Gonzales, 503 F.3d 1116 (10th Cir. 2007) (exhaustion approach to BIA factual errors)
- Omari v. Holder, 562 F.3d 314 (5th Cir. 2009) (motion for reconsideration as vehicle for BIA errors)