Xue Su Wang v. Holder
2014 U.S. App. LEXIS 8156
| 1st Cir. | 2014Background
- Xue Su Wang, a Chinese national, entered the U.S. without inspection (1993) and applied for asylum (1994); he was served with a show-cause order and scheduled for a removal hearing in Boston (1995).
- Wang failed to appear at the August 16, 1995 hearing; an in absentia deportation order issued. He later admitted he knew by January 1996 that there were problems with his asylum claim.
- Wang filed a first motion to reopen in 1998; the IJ denied it as untimely under the 180-day rule for in absentia orders and the BIA affirmed (2000). He did not seek review then.
- He filed a second motion to reopen in 2009 (changed country conditions; ineffective assistance); the BIA denied it and this court affirmed (2010).
- Wang filed a third motion to reopen in 2013, arguing lack of notice of the deportation order, that the filing period never began, and equitable tolling; the BIA denied it as untimely and the First Circuit denied review.
- The BIA and the court treated the case under the special time limits for reopening in absentia orders: normally 180 days to reopen for exceptional circumstances; no time limit if the alien did not receive notice or was in custody.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of third motion to reopen | Wang argued his motion was timely because he lacked notice of the deportation order and thus the 180-day clock never started | Government argued Wang conceded he received the show-cause notice and the 180-day deadline applied; his motion was filed far too late | Court held BIA did not abuse discretion: motion untimely under the 180-day rule |
| Equitable tolling of time limit | Wang argued equitable tolling should apply given his circumstances and purported lack of notice | Government argued Wang failed to show due diligence or extraordinary circumstance over the long delay | Court held equitable tolling unavailable: Wang lacked due diligence over nearly two decades; BIA’s denial not arbitrary |
| Exception for never having received notice | Wang claimed he never received the in absentia deportation order and thus the no-time-limit exception should apply | Government pointed to Wang’s concession that he received the show-cause order listing the hearing date, defeating the "no notice" exception | Court held Wang ineligible for the no-time-limit exception because he conceded receipt of the show-cause notice |
Key Cases Cited
- Fustaguio do Nascimento v. Mukasey, 549 F.3d 12 (describing motions to reopen as disfavored and emphasizing finality)
- Kucana v. Holder, 558 U.S. 233 (BIA denial of motion to reopen reviewed for abuse of discretion)
- Raza v. Gonzales, 484 F.3d 125 (abuse-of-discretion standard requires showing error of law or arbitrary decision)
- Neves v. Holder, 613 F.3d 30 (equitable tolling requires diligence and extraordinary circumstances)
- Bead v. Holder, 703 F.3d 591 (affirming denial of equitable tolling for lack of diligence)
- Charuc v. Holder, 737 F.3d 113 (noting unresolved question whether equitable tolling can suspend time limits for motions to reopen)
- Lemus v. Gonzales, 489 F.3d 399 (aliens may not indefinitely evade removal by endless motions)