Wang v. Holder, No. 13–1767.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtSELYA
Decision Date30 April 2014
PartiesXUE SU WANG, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
Docket NumberNo. 13–1767.

750 F.3d 87

XUE SU WANG, Petitioner,
v.
Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 13–1767.

United States Court of Appeals,
First Circuit.

April 30, 2014.


[750 F.3d 88]


Jeffrey E. Baron and Baron & Shelkin, P.C. on brief for petitioner.

Stuart F. Delery, Assistant Attorney General, Shelley R. Goad, Assistant Director, and Carmel A. Morgan, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, on brief for respondent.


Before TORRUELLA, SELYA and LIPEZ, Circuit Judges.

SELYA, Circuit Judge.

Although a familiar bit of homespun philosophy tells us that hope springs eternal, litigation founded on hope alone, unsupported by persuasive legal or factual arguments, should not be allowed to persist eternally. Such is the lesson of this case.

Petitioner Xue Su Wang, a Chinese national, seeks judicial review of a final order of the Board of Immigration Appeals (BIA) denying his motion to reopen removal proceedings. The petitioner's case began nearly two decades ago, but the relevant facts are susceptible to succinct summarization.

The petitioner entered the United States without inspection in 1993. On November 28, 1994, he filed an application for asylum. Within a matter of months, federal authorities served him with a show-cause order charging removability. See8 U.S.C. § 1227(a)(1)(B) (formerly 8 U.S.C. § 1251(a)(1)(B)).

A removal hearing, structured to consider both the government's charge and the petitioner's cross-application for asylum, was scheduled for August 16, 1995, at the immigration court in Boston. The petitioner failed to appear, and the immigration judge (IJ) entered an order of deportation in absentia.

Nothing of consequence happened until November 12, 1998, when the petitioner moved to reopen the proceedings. He conceded that he had known of the scheduled show-cause hearing, but said that he did not appear because an immigration consultant whom he had hired advised him that the proceedings would be transferred to New York. He also complained that he never received the in absentia deportation order because it had been mailed to his old Boston address. He admitted, though, that he knew by January of 1996 that there were problems with his asylum claim

[750 F.3d 89]

because his consultant had informed him that the claim had been “cancelled” and he could do nothing further to pursue it.

The IJ recognized that special time-bar rules apply to motions to reopen following in absentia deportation orders. See8 C.F.R. § 1003.23(b)(4)(iii)(A). Nevertheless, the IJ denied the petitioner's motion as untimely. The IJ explained that the petitioner's motion was filed significantly beyond the 180–day deadline for such motions and that the petitioner had waited too long to seek reopening after learning the actual status of his application. The petitioner appealed to the BIA. By order dated November 15, 2000, the BIA affirmed without opinion the IJ's refusal to reopen the proceedings. The petitioner chose not to seek judicial review of this order.

We fast-forward to February 12, 2009 (more than eight years later). On that date, the petitioner filed a second motion to reopen—this time, directly with the BIA—in which he argued that his case should be reopened because of changed country conditions. See id. § 1003.2(c)(3)(ii). Alternatively, he argued for relief due to ineffective assistance of counsel. Unimpressed, the BIA denied the second motion to reopen, concluding that neither of the petitioner's asserted grounds had merit. The petitioner sought judicial review and this court held that the BIA had not abused its discretion. See Wang v. Holder, No. 09–2535 (1st Cir. May 7, 2010) (unpublished judgment).

Almost three more years elapsed before the petitioner—on February 27, 2013—filed yet a third motion to reopen. This motion (also lodged directly with the BIA) argued that reopening was warranted because (i) the petitioner had not received notice of the original deportation order, (ii) the...

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13 practice notes
  • Thompson v. Barr, No. 18-1823
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • May 21, 2020
    ...judgment in an arbitrary, capricious, or irrational way." Cabas v. Barr, 928 F.3d 177, 181 (1st Cir. 2019) (quoting Xue Su Wang v. Holder, 750 F.3d 87, 89 (1st Cir. 2014) ). Within this deferential framework, "[w]e review questions of law de novo." Bolieiro v. Holder, 731 F.3d 32, 36 (1st C......
  • Xin Qiang Liu v. Lynch, No. 14–1159.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 11, 2015
    ...as contrary to the compelling public interests in finality and the expeditious processing of proceedings.”Xue Su Wang v. Holder, 750 F.3d 87, 89 (1st Cir.2014) (quoting Nascimento v. Mukasey, 549 F.3d 12, 15 (1st Cir.2008) ). We review the BIA's decisions under a deferential abuse of discre......
  • Liu v. Lynch, No. 14-1159
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 11, 2015
    ...as contrary to the compelling public interests in finality and the expeditious processing of proceedings." Xue Su Wang v. Holder, 750 F.3d 87, 89 (1st Cir. 2014) (quoting Nascimento v. Mukasey, 549 F.3d 12, 15 (1st Cir. 2008)). We review the BIA's decisions under a deferential abuse of disc......
  • Wan v. Holder, Nos. 13–1893
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • January 20, 2015
    ...[776 F.3d 56] abuse of discretion. See INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Xue Su Wang v. Holder, 750 F.3d 87, 89 (1st Cir.2014). The agency's resolution of such a motion will stand unless that resolution rests on a material error of law or a manifestly......
  • Request a trial to view additional results
13 cases
  • Thompson v. Barr, No. 18-1823
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • May 21, 2020
    ...judgment in an arbitrary, capricious, or irrational way." Cabas v. Barr, 928 F.3d 177, 181 (1st Cir. 2019) (quoting Xue Su Wang v. Holder, 750 F.3d 87, 89 (1st Cir. 2014) ). Within this deferential framework, "[w]e review questions of law de novo." Bolieiro v. Holder, 731 F.3d 32, 36 (1st C......
  • Xin Qiang Liu v. Lynch, No. 14–1159.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 11, 2015
    ...as contrary to the compelling public interests in finality and the expeditious processing of proceedings.”Xue Su Wang v. Holder, 750 F.3d 87, 89 (1st Cir.2014) (quoting Nascimento v. Mukasey, 549 F.3d 12, 15 (1st Cir.2008) ). We review the BIA's decisions under a deferential abuse of discre......
  • Liu v. Lynch, No. 14-1159
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 11, 2015
    ...as contrary to the compelling public interests in finality and the expeditious processing of proceedings." Xue Su Wang v. Holder, 750 F.3d 87, 89 (1st Cir. 2014) (quoting Nascimento v. Mukasey, 549 F.3d 12, 15 (1st Cir. 2008)). We review the BIA's decisions under a deferential abuse of disc......
  • Wan v. Holder, Nos. 13–1893
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • January 20, 2015
    ...[776 F.3d 56] abuse of discretion. See INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Xue Su Wang v. Holder, 750 F.3d 87, 89 (1st Cir.2014). The agency's resolution of such a motion will stand unless that resolution rests on a material error of law or a manifestly......
  • Request a trial to view additional results

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