Ru Lin v. Holder , 447 F. App'x 273 ( 2012 )

11-666-ag
Lin v. Holder
BIA
A073 180 246
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 10th day of January, two thousand twelve.
5
6 PRESENT:
7 PETER W. HALL,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _________________________________________
12
13 RU LIN,
14 Petitioner,
15
16 v. 11-666-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Eric Y. Zheng, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Francis W. Fraser, Senior
27 Litigation Counsel; Susan Houser,
28 Senior Litigation Counsel, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Ru Lin, a native and citizen of the People’s
6 Republic of China, seeks review of the January 21, 2011,
7 decision of the BIA denying her motion to reopen. In re Ru
8 Lin, No. A073 180 246 (B.I.A. Jan. 21, 2011). We assume the
9 parties’ familiarity with the underlying facts and
10 procedural history of the case.
11 The BIA’s denial of Lin’s motion to reopen as untimely
12 was not an abuse of discretion. See Kaur v. BIA, 413 F.3d
13 232, 233 (2d Cir. 2005) (per curiam) (reviewing denial of a
14 motion to reopen or reconsider for abuse of discretion). A
15 motion to reopen generally must be filed no later than 90
16 days after the date on which the final administrative
17 decision has been rendered in the proceedings sought to be
18 reopened. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
19 § 1003.2(c)(2). There is no dispute that Lin’s 2010 motion
20 was untimely, as the final administrative decision was
21 issued in 2002. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
22 § 1003.2(c)(2). This was also Lin’s third motion to reopen.
2
1 The time and number limitations do not apply to a motion to
2 reopen if it is “based on changed circumstances arising in
3 the country of nationality or in the country to which
4 deportation has been ordered, if such evidence is material
5 and was not available and could not have been discovered or
6 presented at the previous hearing.” 8 C.F.R.
7 § 1003.2(c)(3)(ii); see also 8 U.S.C. § 1229a(c)(7)(C)(ii).
8 Lin contends that her new practice of Christianity in the
9 United States constitutes changed circumstances. As the BIA
10 noted, however, Lin’s baptism into the Christian faith,
11 which occurred in 2007 in the United States, reflects a
12 self-induced change in personal circumstances, and therefore
13 does not exempt her motion from the applicable bars. See
14 Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir. 2006);
15 Yuen Jin v. Mukasey, 538 F.3d 143, 155 (2d Cir. 2008).
16 Lin also argues that she demonstrated changed country
17 conditions by submitting evidence showing that treatment of
18 Christians in China worsened in 2008 and 2009, and that the
19 BIA abused its discretion by overlooking this evidence.
20 However, assuming arguendo that Lin can rely on such
21 evidence, the BIA referenced this evidence in its decision,
22 and its acknowledgment was sufficient. See Jian Hui Shao v.
3
1 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (noting that the
2 BIA does not need to expressly parse or refute every piece
3 of evidence submitted by the petitioner); Xiao Ji Chen v.
4 U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006)
5 (“[w]e presume that an IJ has taken into account all of the
6 evidence before him, unless the record compellingly suggests
7 otherwise”).
8 Moreover, the BIA’s determination that the evidence
9 failed to demonstrate changed country conditions is
10 supported by substantial evidence. See Jian Hui Shao, 546
11 F.3d at 169 (when the BIA considers relevant evidence of
12 country conditions in evaluating a motion to reopen, we
13 review the BIA’s factual findings under the substantial
14 evidence standard). Lin fails to show a material worsening
15 of conditions for Christians in China, as the background
16 materials submitted show a continued repression of
17 Christians who worship in unregistered churches, and Lin
18 does not explain how the evidence shows any increase in the
19 frequency or scale of persecution. We decline to reach
20 Lin’s assertion that she has established her prima facie
21 eligibility for relief.
22
4
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DENIED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
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