Bi Ying Lin v. Holder , 387 F. App'x 70 ( 2010 )

09-2247-ag
Lin v. Holder
BIA
A077 007 747
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 21 st day of July, two thousand ten.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _________________________________________
12
13 BI YING LIN,
14 Petitioner,
15
16 v. 09-2247-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Pro Se.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Lyle D. Jentzer, Assistant
27 Director; Zoe J. Heller, Attorney,
28 Office of Immigration Litigation,
29 United States Department of Justice,
30 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 Bi Ying Lin, a native and citizen of the People’s
6 Republic of China, seeks review of an April 30, 2009, order
7 of the BIA denying her motion to reopen. In re Bi Ying Lin,
8 No. A077 007 747 (B.I.A. April 30, 2009). We assume the
9 parties’ familiarity with the underlying facts and
10 procedural history in this case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006). An alien may only file one motion to reopen
14 and must do so within 90 days of the final administrative
15 decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).
16 Lin’s second motion to reopen was indisputably untimely, as
17 it was filed more than six years after the BIA issued a
18 final order in her case. However, there is no time or
19 numerical limitation if the alien establishes materially
20 “changed country conditions arising in the country of
21 nationality.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8
22 C.F.R. § 1003.2(c)(3)(ii).
2
1 The BIA did not abuse its discretion in finding that
2 the birth of Lin’s two U.S. citizen children and her
3 involvement in an underground Christian church reflected
4 changes in her personal circumstances rather than changed
5 country conditions in China. See Wei Guang Wang v. BIA, 437
6 F.3d 270, 272, 274 (2d Cir. 2006) (making clear that the
7 time and numerical limitations on motions to reopen may not
8 be suspended because of a “self-induced change in personal
9 circumstances” that is “entirely of [the applicant’s] own
10 making after being ordered to leave the United States”).
11 The BIA also did not abuse its discretion in concluding that
12 the documentary evidence Lin submitted did not meaningfully
13 demonstrate that conditions in China have changed since the
14 time of her first hearing. See Jian Hui Shao v. Mukasey,
15 546 F.3d 138, 169-72 (2d Cir. 2008); Xiao Ji Chen v. U.S.
16 Dep’t of Justice, 471 F.3d 315,342(2d Cir. 2006) (holding
17 that the weight afforded to the evidence lies largely within
18 the agency’s discretion).
19 Furthermore, contrary to Lin’s argument, the record
20 does not compellingly suggest that the BIA failed to
21 consider any material evidence. See id. at 337 n.17
22 (presuming that the agency “has taken into account all of
23 the evidence before [it], unless the record compellingly
3
1 suggests otherwise”). Rather, the BIA properly declined to
2 credit the letters Lin submitted based on the Immigration
3 Judge’s underlying adverse credibility determination. See
4 Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-49 (2d Cir.
5 2007).
6 Moreover, because Lin failed to establish changed
7 country conditions in China sufficient to excuse the
8 untimely filing of her motion to reopen, the BIA did not
9 abuse its discretion in denying her motion to file a
10 successive asylum application. See Yuen Jin v. Mukasey, 538
11 F.3d 143, 152 (2d Cir. 2008) (holding that a properly filed
12 motion to reopen is a prerequisite to the filing of a new
13 asylum application when the petitioner is under a final
14 removal order).
15 For the foregoing reasons, the petition for review is
16 DENIED. As we have completed our review, any stay of
17 removal that the Court previously granted in this petition
18 is VACATED, and any pending motion for a stay of removal in
19 this petition is DISMISSED as moot. Any pending request for
20 oral argument in this petition is DENIED in accordance with
21 Federal Rule of Appellate Procedure 34(a)(2), and Second
22 Circuit Local Rule 34.1(b).
23 FOR THE COURT:
24 Catherine O’Hagan Wolfe, Clerk
25
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