Xian Lin v. Holder , 369 F. App'x 157 ( 2010 )

09-1355-ag
Lin v. Holder
BIA
A073 164 640
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
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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 9 th day of March, two thousand ten.
PRESENT:
ROBERT A. KATZMANN,
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges.
_______________________________________
XIAN LIN,
Petitioner,
v. 09-1355-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Nathan Weill, New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General, Greg D. Mack, Senior
Litigation Counsel, Wendy Benner-
Leon, Trial Attorney, Office of
Immigration Litigation, Civil
Division, United States Department
of Justice, Washington, DC
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.
Petitioner Xian Lin, a native and citizen of the
People’s Republic of China, seeks review of the March 13,
2009 order of the BIA denying his motion to reopen. In re
Xian Lin, No. A 073 164 640 (B.I.A. Mar. 13, 2009). We
assume the parties’ familiarity with the underlying facts
and procedural history of the case.
The BIA did not abuse its discretion in denying Lin’s
untimely and number-barred motion to reopen. See Ali v.
Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). The regulations
provide that “a party may file only one motion to reopen
deportation or exclusion proceedings . . . and that motion
must be filed no later than 90 days after the date on which
the final administrative decision was rendered in the
proceeding sought to be reopened, or on or before September
30, 1996, whichever is later.” 8 C.F.R. § 1003.2(c)(2).
Lin’s October 2008 motion was indisputably untimely and
number-barred because he filed it more than seven years
after the BIA’s April 2001 order of deportation, and it was
the second such motion he had filed. However, the time and
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numerical limitations may be equitably tolled to accommodate
claims of ineffective assistance of counsel. See Cekic v.
INS, 435 F.3d 167, 170 (2d Cir. 2006). Additionally, the
time limitations do not apply if the alien can establish
materially “changed circumstances arising in the country of
nationality.” 8 C.F.R. § 1003.2(c)(3)(ii).
I. Ineffective Assistance
The BIA did not abuse its discretion in declining to
equitably toll the filing deadline for Lin’s motion to
reopen because, as it found, he failed to demonstrate that
he was prejudiced by the actions of his prior attorney or
the immigration service that assisted him in filing his visa
petition. See Matter of Lozada, 19 I. & N. Dec. 637, 639
(BIA 1988); see also Romero v. INS, 399 F.3d 109, 112 (2d
Cir. 2005).
While Lin argues that he received ineffective
assistance because his prior attorney did not timely file
his first motion to reopen, as the BIA noted, Lin never
established that his prior attorney or the immigration
service was retained to do so. See Lozada, 19 I. & N. Dec.
at 639; see also Romero, 399 F.3d at 112 (noting that an
alien must establish that “his counsel’s performance was so
ineffective as to have impinged upon the fundamental
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fairness of the hearing in violation of the [F]ifth
[A]mendment due process clause. To show fundamental
unfairness, an alien must allege facts sufficient to show .
. . that he was prejudiced by his counsel’s performance.”).
In his affidavit, Lin failed to describe the scope of his
agreement with his prior attorney and the immigration
service. See Lozada, 19 I. & N. Dec. at 639. Moreover, we
agree with the BIA that the record demonstrates that, even
if Lin did seek their assistance in filing a motion to
reopen, he did so at a time when the motion would already
have been untimely. Accordingly, the BIA did not abuse its
discretion in finding that Lin failed to show the requisite
prejudice.
II. Changed Country Conditions
In addition, the BIA did not abuse its discretion in
denying Lin’s motion to reopen based on his fear of
sterilization on account of the birth of his two American-
born children. See Jian Hui Shao v. Mukasey, 546 F.3d 138,
169 (2d Cir. 2008). The BIA reasonably found that the
evidence Lin submitted was unauthenticated and thus
insufficient to demonstrate changed country conditions in
China. Contrary to Lin’s argument that in In re S-Y-G-, 24
I. & N. Dec. 247 (BIA 2007), the BIA “makes no mention of
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any requirement that evidence attached to a motion to reopen
must be ‘authenticated[,]’” the BIA stated in that decision
that in order to succeed on a motion to reopen, the alien
must “make an effort to demonstrate the authenticity of
[the] evidence submitted[,]” id. at 251 n.2. Moreover,
while Lin argues that the BIA erred in relying solely on the
regulations to refuse to credit the documents from YingQian
Village, it relied on his failure to meet his burden, which,
as the BIA indicated, was “much heavier” because he “ha[d]
already been found deportable.” See INS v. Abudu, 485 U.S.
94, 110 (1988); see also Qin Wen Zheng v. Gonzales, 500 F.3d
143, 148 n.6 (2d Cir. 2007) (noting that “the context of
[an] immigration proceeding [and, thus, the burden placed on
an applicant is] crucially different” depending on whether
the applicant seeks to reopen based on changed country
conditions or challenges the denial of his application for
asylum). Therefore, the BIA reasonably declined to assign
probative weight to the unauthenticated evidence that Lin
submitted in support of his motion to reopen. See Qin Wen
Zheng, 500 F.3d at 148 n.6; Xiao Xing Ni v. Gonzales, 494
F.3d 260, 270 (2d Cir. 2007) (“[N]othing is easier than to
submit to an appellate court for the first time documents
that, ‘if authentic,’ would ‘appear to be official
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statements’ of the Chinese government. If not these
documents or those documents, some others would do.”
(internal citation omitted)). Because Lin concedes that the
more generalized evidence he submitted did not show
widespread changes in the enforcement of China’s family
planning policy, his challenge to the BIA’s denial of his
motion fails. See Jian Hui Shao, 546 F.3d at 169.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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