Yu Qing Jiang v. Holder , 351 F. App'x 571 ( 2009 )

07-4884-ag
Lin v. Holder
BIA
A077 913 582
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
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DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 19 th day of November, two thousand nine.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JON. O. NEWMAN,
10 PIERRE N. LEVAL,
11 Circuit Judges.
12 _________________________________________
13
14 KAN YUN LIN,
15 Petitioner,
16
17 v. 07-4884-ag
18 NAC
19 ERIC H. HOLDER, JR., * UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ________________________________________
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr. is
automatically substituted for former Acting Attorney General
Peter D. Keisler as the respondent in this case.
0 9 1 4 0 9 -2 4
1 FOR PETITIONER: Yimin Chen, New York, New York.
2
3 FOR RESPONDENT: Gregory G. Katsas, Acting Assistant
4 Attorney General; Susan K. Houser,
5 Senior Litigation Counsel; W. Daniel
6 Shieh, Trial Attorney; Office of
7 Immigration Litigation, Civil
8 Division, United States Department
9 of Justice, Washington, D.C.
10
11 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA”) decision, it is hereby
13 ORDERED, ADJUDGED, AND DECREED, that the petition for review
14 is DENIED.
15 Petitioner Kan Yun Lin, a native and citizen of the
16 People’s Republic of China, seeks review of an October 5,
17 2007 order of the BIA denying her motion to reopen. In re
18 Kan Yun Lin, No. A077 913 582 (B.I.A. Oct. 5, 2007). We
19 assume the parties’ familiarity with the underlying facts
20 and procedural history in this case.
21 We review the BIA’s denial of a motion to reopen for
22 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
23 Cir. 2006). When the BIA considers relevant evidence of
24 country conditions in evaluating a motion to reopen, we
25 review the BIA’s factual findings under the substantial
26 evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d
27 138, 169 (2d Cir. 2008).
2
1 The BIA did not err in denying Lin’s untimely motion to
2 reopen. See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R.
3 § 1003.2(c)(2). Lin argues that the BIA erred by finding
4 that she failed to produce evidence demonstrating either
5 material changed country conditions sufficient to excuse the
6 untimely filing of her motion to reopen or her prima facie
7 eligibility for relief from removal. However, these
8 arguments fail because we have previously reviewed the BIA’s
9 consideration of evidence similar to that which Lin
10 submitted and have found no error in its conclusion that
11 such evidence is insufficient to establish either material
12 changed country conditions or a reasonable possibility of
13 persecution. See Jian Hui Shao, 546 F.3d at 169-72 (noting
14 that “[w]e do not ourselves attempt to resolve conflicts in
15 record evidence, a task largely within the discretion of the
16 agency”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275
17 (2d Cir. 2006) (noting that while the BIA must consider
18 evidence such as “the oft-cited Aird affidavit, which [it]
19 is asked to consider time and again[,] . . . it may do so in
20 summary fashion without a reviewing court presuming that it
21 has abused its discretion”).
22 The BIA’s determination that Lin was not eligible to
3
1 file a successive asylum application was not in error. See
2 Yuen Jin v. Mukasey, 538 F.3d 143, 156, 158-59 (2d Cir.
3 2008).
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of
6 removal that the Court previously granted in this petition
7 is VACATED, and any pending motion for a stay of removal in
8 this petition is DISMISSED as moot. Any pending request for
9 oral argument in this petition is DENIED in accordance with
10 Federal Rule of Appellate Procedure 34(a)(2), and Second
11 Circuit Local Rule 34(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
15 By:___________________________
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