Mei Yu Lin v. Holder , 455 F. App'x 80 ( 2012 )

10-3785-ag
Lin v. Holder
BIA
A077 309 230
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.
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 17th day of January, two thousand twelve,
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DEBRA ANN LIVINGSTON,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 MEI YU LIN,
14 Petitioner,
15
16 v. 10-3785-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York,
24 New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Ernesto H. Molina, Jr.,
28 Assistant Director; Drew C.
29 Brinkman, Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Mei Yu Lin, a native and citizen of the
10 People's Republic of China, seeks review of an August 31,
11 2010, decision of the BIA denying her motion to reopen her
12 removal proceedings. In re Mei Yu Lin, No. A077 309 230
13 (B.I.A. Aug. 31, 2010). We assume the parties’ familiarity
14 with the underlying facts and procedural history in this
15 case.
16 We review the BIA’s denial of a motion to reopen for
17 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
18 (2d Cir. 2006). An alien seeking to reopen proceedings is
19 required to file a motion to reopen no later than 90 days
20 after the date on which the final administrative decision
21 was rendered, and is permitted to file only one such motion.
22 8 U.S.C. § 1229a(c)(7)(C). There is no dispute that Lin’s
23 second motion to reopen, filed nearly seven years after the
24 BIA affirmed the IJ’s denial of her asylum application, was
25 untimely and number-barred. See id.
2
1 Although Lin argues that she presented evidence of
2 changed country conditions to warrant consideration of her
3 untimely motion, see 8 U.S.C. § 1229a(c)(7)(C)(ii), the BIA
4 did not abuse its discretion in denying her motion because
5 she failed to establish her prima facie eligibility for
6 relief. See INS v. Abudu, 485 U.S. 94, 104-05 (1988). The
7 BIA reasonably declined to accord probative weight to Lin’s
8 evidence based on the legitimate credibility concerns raised
9 by the immigration judge’s prior adverse credibility
10 determination and Lin’s failure to properly authenticate
11 documents. See Qin Wen Zheng v. Gonzales, 500 F.3d 143,
12 146-49 (2d Cir. 2007). Similarly, the BIA reasonably found
13 that Lin’s claimed fear of economic persecution, supported
14 only by her husband's "vague and generalized statement"
15 indicating that the fine imposed is more than three years'
16 income in the region, was insufficient to demonstrate her
17 prima facie eligibility for relief. See id.; Guan Shan Liao
18 v. U.S. Dep't of Justice, 293 F.3d 61, 70 (2d Cir. 2002).
19 Lastly, the BIA did not err in finding that Lin’s
20 assertion that her husband was sterilized was insufficient
21 to establish a well-founded fear that she would face
22 persecution under the family planning policy. See Shi Liang
3
1 Lin v. U.S. Dep't of Justice, 494 F.3d 296, 308-09 (2d Cir.
2 2007). Accordingly, the agency did not err in denying Lin’s
3 motion based on its finding that she failed to demonstrate
4 her prima facie eligibility for relief.
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 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
15
4