Xing Lin v. Holder ( 2010 )

07-5212-ag
Lin v. Holder
BIA
A 072 765 479
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 A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 19 th day of May, two thousand ten.
PRESENT:
REENA RAGGI,
RICHARD C. WESLEY,
PETER W. HALL,
Circuit Judges.
______________________________________
XING LIN,
Petitioner,
07-5212-ag
v. NAC
ERIC H. HOLDER, JR., * UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Michael Brown, New York, New York.
FOR RESPONDENT: Gregory G. Katsas, Assistant
Attorney General, Civil Division;
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
Susan K. Houser, Senior Litigation
Counsel; John J.W. Inkeles, Trial
Attorney, Office of Immigration
Litigation, Civil Division, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner, Xing Lin, a native and citizen of the
People’s Republic of China, seeks review of an October 31,
2007 order of the BIA denying as untimely his motion to
reopen asylum proceedings resolved against him in 1995. In
re Xing Lin, No. A 072 765 479 (B.I.A. Oct. 31, 2007). We
assume the parties’ familiarity with the underlying facts
and procedural history of the case.
We review the BIA’s denial of Lin’s motion to reopen
for abuse of discretion, see Ali v. Gonzales, 448 F.3d 515,
517 (2d Cir. 2006), and we detect none on this record.
There is no dispute that Lin’s application was untimely
filed. See 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).
Further, the BIA reasonably determined that Lin failed to
present evidence of changed country conditions sufficient to
qualify for an exception to the 90-day filing deadline. See
2
8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii);
see also Jian Hui Shao v. Mukasey, 546 F.3d 138, 169-72 (2d
Cir. 2008) (upholding denial of motion to reopen based on
similar evidence); Wei Guang Wang v. BIA, 437 F.3d 270, 273
(2d Cir. 2006) (endorsing BIA conclusion that birth of
children in U.S. is change in personal circumstances, not
change in country conditions).
To the extent Lin argues that the alleged ineffective
assistance of his former attorney warranted reopening the
proceedings, the claim is without merit. Ineffective
assistance of counsel is not a sufficient basis, on its own,
to excuse a late filing, see Cekic v. INS, 435 F.3d 167, 170
(2d Cir. 2006), and Lin does not argue that he was entitled
to equitable tolling of the filing deadline, see Norton v.
Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998) (“Issues not
sufficiently argued in the briefs are considered waived and
normally will not be addressed on appeal.”). 1 In any event,
because Lin failed to raise the issue of equitable tolling
before the BIA, any such argument remains unexhausted. See
1
As Lin admits lying about his eligibility for asylum
– purportedly because counsel told him his request for
relief would otherwise be denied – he can hardly
demonstrate prejudice from the alleged ineffectiveness.
See Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 1994).
3
Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 121-22,
124 (2d Cir. 2007) (holding that issue exhaustion is
mandatory, though not jurisdictional, requirement).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
4