Wang v. Garland
16-3422(L)
| 2d Cir. | Mar 15, 2022Background
- Petitioner Tan Yun Wang, a native of China, was ordered removed in absentia in December 2000 after allegedly failing to receive or respond to hearing notices.
- Wang moved in 2014 to rescind the in absentia removal and to reopen proceedings, alleging lack of notice and ineffective assistance of counsel; IJ and BIA denied relief.
- He also moved to reopen based on a 2012 conversion to Catholicism and alleged discovery in China of religious materials in 2013; the agency treated this as an untimely motion to reopen and denied it.
- Wang later filed a separate motion arguing his initial Notice to Appear (NTA) was defective for omitting hearing date/time, which he claimed affects stop-time for cancellation of removal.
- The Second Circuit affirmed the denials of rescission and asylum-based reopening but granted the consolidated petition, vacated the later BIA denial, and remanded for reconsideration of reopening to apply for cancellation of removal in light of intervening Supreme Court NTA decisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the in absentia order should be rescinded for lack of notice | Wang: initial NTA/mailings failed; he did not receive proper notice of the Dec 2000 hearing | Gov: court mailed notice to address given in bond proceedings; alien must update address; constructive notice applies | Court: No abuse of discretion — record shows notice sent to provided address; rescission for lack of notice denied |
| Whether equitable tolling / exceptional circumstances (ineffective counsel) excuse late motion to rescind | Wang: ineffective assistance prevented timely reopening; sought equitable tolling | Gov: Wang knew of counsel problems by 2000–2001 and waited years; no diligent pursuit or corroboration | Court: Denial affirmed — Wang failed to show due diligence or corroboration; motion untimely |
| Whether reopening for asylum based on 2012 conversion / alleged 2013 discovery of materials shows changed country conditions | Wang: conversion and alleged discovery in China create materially changed conditions warranting asylum reopening | Gov: conversion is a personal, self-induced change; alleged discovery evidence not credible or corroborated | Court: Denial affirmed — conversion is personal change; IJ found discovery claim not credible and Wang did not exhaust that challenge to BIA |
| Whether defective NTA (no date/time) precludes stop-time and warrants reopening for cancellation of removal | Wang: NTA lacked date/time so stop-time did not trigger; he may have 10 years’ continuous presence for cancellation | Gov: subsequent hearing notice cured defect for stop-time; jurisdiction vested despite NTA omission | Held: Remand granted — after Niz-Chavez Pereira/Niz-Chavez line, subsequent notice cannot cure an NTA missing date/time for stop-time; but omission does not void jurisdiction (Banegas Gomez) so BIA should reconsider reopening for cancellation of removal |
Key Cases Cited
- Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524 (2d Cir. 2006) (standard for reviewing IJ and BIA denials)
- Song Jin Wu v. INS, 436 F.3d 157 (2d Cir. 2006) (distinguishing rescission vs. reopening rules)
- Alrefae v. Chertoff, 471 F.3d 353 (2d Cir. 2006) (motions to rescind and reopen treated separately)
- Maghradze v. Gonzales, 462 F.3d 150 (2d Cir. 2006) (constructive notice when alien fails to update address)
- Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008) (review of country-conditions findings for substantial evidence)
- Rashid v. Mukasey, 533 F.3d 127 (2d Cir. 2008) (equitable tolling requires diligent pursuit of claim)
- Iavorski v. U.S. INS, 232 F.3d 124 (2d Cir. 2000) (diligence standard for reopening/equitable tolling)
- Jian Hua Wang v. BIA, 508 F.3d 710 (2d Cir. 2007) (delay of two years or more often shows lack of due diligence)
- Wei Guang Wang v. BIA, 437 F.3d 270 (2d Cir. 2006) (personal, self-induced changes do not excuse reopening time limits)
- Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104 (2d Cir. 2007) (issue-exhaustion requirement before the BIA)
- Y.C. v. Holder, 741 F.3d 324 (2d Cir. 2013) (deference to agency credibility and evidence weighing)
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (NTA must include time and place to trigger stop-time rule)
- Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) (single NTA must contain all statutorily required information; subsequent notices do not cure omission for stop-time)
- Banegas Gomez v. Barr, 922 F.3d 101 (2d Cir. 2019) (Pereira does not strip immigration court of jurisdiction where a later hearing notice is issued)
- Mahmood v. Holder, 570 F.3d 466 (2d Cir. 2009) (remand appropriate where BIA misperceived legal background)