Li Feng Chen v. Holder , 352 F. App'x 494 ( 2009 )

07-4704-ag
Lin v. Holder
BIA
A073 560 019
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
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
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 XIU YUN LIN,
15 Petitioner,
16
17 v. 07-4704-ag
18 NAC
19 ERIC H. HOLDER, JR., * UNITED STATES
20 ATTORNEY GENERAL, UNITED STATES
21 DEPARTMENT OF JUSTICE,
22 Respondents.
23 ________________________________________
*
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 a respondent in this case.
0 9 1 4 0 9 -2 1
1 FOR PETITIONER: Dehai Zhang, Flushing, New York.
2
3 FOR RESPONDENTS: Gregory G. Katsas, Acting Assistant
4 Attorney General; Francis W. Fraser,
5 Senior Litigation Counsel; Kate D.
6 Balaban, 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 Xiu 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 second motion to reopen.
18 In re Xiu Yun Lin, No. A073 560 019 (B.I.A. Oct. 5, 2007).
19 We 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. However, these arguments fail
8 because we have previously reviewed the BIA’s consideration
9 of evidence similar to that which Lin submitted and have
10 found no error in its conclusion that such evidence is
11 insufficient to establish either material changed country
12 conditions or a reasonable possibility of persecution. See
13 Jian Hui Shao, 546 F.3d at 169-72 (noting that “[w]e do not
14 ourselves attempt to resolve conflicts in record evidence, a
15 task largely within the discretion of the agency”); see also
16 Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006)
17 (noting that while the BIA must consider evidence such as
18 “the oft-cited Aird affidavit, which [it] is asked to
19 consider time and again[,] . . . it may do so in summary
20 fashion without a reviewing court presuming that it has
21 abused its discretion”). Moreover, despite Lin’s argument
22 regarding a document discussing the forced abortion of a
3
1 Hong Kong native in Hunan Province, the agency reasonably
2 found that her evidence failed to describe the persecution
3 of similarly situated individuals. See Jian Hui Shao, 546
4 F.3d at 160-61, 169-70.
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of
7 removal that the Court previously granted in this petition
8 is VACATED, and any pending motion for a stay of removal in
9 this petition is DISMISSED as moot. Any pending request for
10 oral argument in this petition is DENIED in accordance with
11 Federal Rule of Appellate Procedure 34(a)(2), and Second
12 Circuit Local Rule 34(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
15
16 By:___________________________
4