Wang v. Board of Immigration Appeal

The question presented, which is the principal focus of this opinion, is whether petitioner exercised due diligence in filing his motion to reopen based on a claim of ineffective assistance of counsel. Petitioner Jian Hua Wang, a native and citizen of the Peoples Republic of China, arrived in the United States in October 2000 without valid entry documents. He was placed in so-called "removal proceedings," where he was represented by counsel, Joseph Muto, and applied for asylum, withholding of removal pursuant to 8 U.S.C. § 1231(b)(3), and relief under the United Nations Convention Against Torture ("CAT"). His asylum application, prepared by Muto, claimed a fear of persecution in China because of its coercive population control policies. Wang asserted that his wife was forced to abort her second pregnancy by family planning officials. He further claimed that he would be imprisoned or sterilized for opposing the coercive population control policies if he were returned to China based on his intent to "imminently violate the policy . . . as [Wang and his wife] plan to have more" than one child. In August 2001, Wang testified before Immigration Judge Barbara A. Nelson ("IJ") in support of his applications for relief. At the conclusion of the hearing, the IJ denied Wangs claims for asylum and withholding of removal, finding Wangs testimony "not credible or reliable because of the serious and numerous omissions from his written application for asylum without satisfactory explanation." Wang timely filed an appeal to the BIA, which affirmed the IJs decision without opinion in August 2002. Wang did not file a petition for review of that decision.