Lin v. Barr ( 2019 )

17-2259
Lin v. Barr
BIA
A079 141 366
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 17th day of April, two thousand nineteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 REENA RAGGI,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12 _____________________________________
13
14 BAI XIANG LIN,
15 Petitioner,
16
17 v. 17-2259
18 NAC
19 WILLIAM P. BARR, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.*
22 _____________________________________
23
24
25 FOR PETITIONER: Margaret W. Wong, Esq.,
26 Cleveland, OH.
27
*Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General William P. Barr is automatically
substituted for former Acting Attorney General Matthew G.
Whitaker.
1 FOR RESPONDENT: Chad A. Readler, Acting Assistant
2 Attorney General, Civil Division;
3 Song E. Park, Senior Litigation
4 Counsel; Matt A. Crapo, Attorney,
5 Office of Immigration Litigation,
6 United States Department of
7 Justice, Washington, DC.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioner Bai Xiang Lin, a native and citizen of the
14 People’s Republic of China, seeks review of June 23, 2017
15 decision of the BIA denying his third motion to reopen. In
16 re Bai Xiang Lin, No. A079 141 366 (B.I.A. June 23, 2017).
17 We assume the parties’ familiarity with the underlying facts
18 and procedural history in this case.
19 We review the BIA’s denial of Lin’s motion to reopen for
20 abuse of discretion and consider whether its conclusion
21 regarding changed country conditions is supported by
22 substantial evidence. Jian Hui Shao v. Mukasey, 546 F.3d
23 138, 168-69 (2d Cir. 2008). It is undisputed that Lin’s 2017
24 motion to reopen was untimely and number-barred because it
25 was his third motion to reopen, and he filed it nearly 8 years
2
1 after the BIA affirmed his removal order. See 8 U.S.C.
2 § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). Although
3 exceeding the time and number limitations may be excused under
4 certain circumstances, the BIA did not abuse its discretion
5 in concluding that neither ineffective assistance nor a
6 change in country conditions excused petitioner from meeting
7 these limitations in this case.
8 The time for filing a motion to reopen may be tolled if
9 the movant establishes ineffective assistance of counsel and
10 shows that he acted with diligence in raising the claim. See
11 Rashid v. Mukasey, 533 F.3d 127, 130 (2d Cir. 2008); Jian Hua
12 Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007); Cekic v. INS,
13 435 F.3d 167, 170 (2d Cir. 2006). The BIA did not abuse its
14 discretion in declining to toll the time limit here because
15 Lin raised the same ineffective assistance claim in his prior
16 motion and petition, both of which were denied because he had
17 not shown due diligence. See Bai Xiang Lin v. Lynch, 615 F.
18 App’x 706, 707-08 (2d Cir. 2015). Lin did not identify any
19 new information that would merit revisiting the issue now.
20 Although the time and number limitations for filing a
21 motion to reopen do not apply if reopening is sought to allow
3
1 an application for asylum and the motion to reopen is “based
2 on changed country conditions arising in the country of
3 nationality,” the evidence submitted must demonstrate a
4 “material” change since the time of the original hearing.
5 8 U.S.C. § 1229a(c)(7)(A), (C)(ii); see also 8 C.F.R.
6 § 1003.2(c)(3)(ii); In re S-Y-G-, 24 I. & N. Dec. 247, 253
7 (B.I.A. 2007) (“In determining whether evidence accompanying
8 a motion to reopen demonstrates a material change in country
9 conditions that would justify reopening, [the BIA] compare[s]
10 the evidence of country conditions submitted with the motion
11 to those that existed at the time of the merits hearing
12 below.”). The BIA acknowledged the news article and State
13 Department report that Lin submitted, but reasonably
14 concluded that those documents did not reflect a material
15 worsening of conditions in China related to the enforcement
16 of the family planning policy in the relevant time period.
17 Both documents established that China has consistently
18 engaged in coercive population control programs since 1971
19 and reflect a recent lessening of restrictions, in that China
20 has raised the birth limit from one to two children per
21 couple. Although the news article reports continued harsh
4
1 restrictions on people who have more than two children, those
2 restrictions do not constitute a change in country conditions
3 because they were also reflected in the evidence presented at
4 Lin’s original hearing. See In re S-Y-G-, 24 I. & N. Dec.
5 at 253. Thus, on this record, the agency was not compelled
6 to conclude that Lin’s evidence reflected a change in
7 conditions material to his fear of harm as someone who
8 resisted the prior family planning policy. See 8 U.S.C.
9 § 1252(b)(4)(B) (“administrative findings of fact are
10 conclusive unless any reasonable adjudicator would be
11 compelled to conclude to the contrary”).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of removal
14 that the Court previously granted in this petition is VACATED,
15 and any pending motion for a stay of removal in this petition
16 is DISMISSED as moot. Any pending request for oral argument
17 in this petition is DENIED in accordance with Federal Rule of
18 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
19 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe,
22 Clerk of Court
5