Lin v. Holder , 586 F. App'x 796 ( 2014 )

13-37
Lin v. Holder
BIA
A077 297 344
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 16th day of October, two thousand fourteen.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 BARRINGTON D. PARKER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 JIAN LING LIN, AKA JIAN LING,
14 Petitioner,
15
16 v. 13-37
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONERS: Chunyu Wang, Flushing, N.Y.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; John S. Hogan, Senior
27 Litigation Counsel; Andrea N. Gevas,
28 Trial Attorney, 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 Jian Ling Lin, a native and citizen of
6 China, seeks review of the December 27, 2012, order of the
7 BIA denying her motion to reopen. In re Jian Ling Lin, No.
8 A077 297 344 (B.I.A. Dec. 27, 2012). We assume the parties’
9 familiarity with the underlying facts and procedural history
10 of the case.
11 We lack jurisdiction to consider whether Lin should
12 have been granted prosecutorial discretion. See 8 U.S.C.
13 § 1252(g); see also Wayte v. U.S., 470 U.S. 598, 607 (1985)
14 (observing that “the decision to prosecute is particularly
15 ill-suited to judicial review”); Gasparian v. Holder, 700
16 F.3d 611, 614 (1st Cir. 2012) (“[I]mmigration statutes do
17 not confer jurisdiction on [the] court to review acts of
18 prosecutorial discretion.”).
19 However, we review the BIA’s denial of Lin’s motion to
20 reopen for an abuse of discretion. See Kaur v. BIA, 413
21 F.3d 232, 233 (2d Cir. 2005). Aliens seeking to reopen
22 proceedings may file a motion to reopen no later than 90
2
1 days after the date on which the final administrative
2 decision was rendered. 8 U.S.C. § 1229a(c)(7)(C)(i);
3 8 C.F.R. § 1003.2(c)(2). In this case, it is undisputed
4 that Lin’s 2012 motion to reopen was untimely because her
5 order of removal became final in 2005. CAR at 626. See
6 8 U.S.C. § 1229a(c)(7)(C)(i); see also 8 C.F.R.
7 § 1003.2(c)(2). An untimely motion may be excused if an
8 alien received ineffective assistance of counsel or
9 demonstrates changed country conditions. See Zhang v.
10 Holder, 617 F.3d 650, 658 (2d Cir. 2010); 8 U.S.C.
11 § 1229a(c)(7)(C)(ii).
12 The BIA did not abuse its discretion when it found Lin
13 failed to demonstrate ineffective assistance of counsel. In
14 order to prevail on a claim of ineffective assistance of
15 counsel, a movant must show that the alien demonstrated
16 “due diligence” in pursuing her claim during “both the
17 period of time before the ineffective assistance of counsel
18 was or should have been discovered and the period from that
19 point until the motion to reopen is filed.” See Rashid v.
20 Mukasey, 533 F.3d 127, 132 (2d Cir. 2008).
21 Lin failed to demonstrate due diligence. Lin argues
22 that she should have discovered the ineffective assistance
3
1 in June 2012, after she was picked up by the immigration
2 authorities. She states that in June 2005, when her removal
3 order became final, she did not understand that she was
4 removable because she still had an application pending for
5 derivative asylee benefits. However, Lin’s former attorney
6 emphatically stated that there was no such pending
7 application, and Lin has not submitted evidence of one. Her
8 former attorney also submitted evidence that Lin had been
9 informed of the consequences of a removal order. Further,
10 Lin’s alternative argument that she sought subsequent legal
11 advice undermines her claim that she did not know that she
12 had been the victim of ineffective assistance. See Cekic v.
13 I.N.S., 435 F.3d 167, 171 (2d Cir. 2006). Thus, the BIA
14 also did not abuse its discretion in finding that Lin failed
15 to demonstrate due diligence. Rashid, 533 F.3d at 131.
16 Lin also failed to demonstrate a change in country
17 conditions in China. Lin submitted the 2005 and 2011
18 Country Reports, which stated that enforcement of family
19 planning laws varied significantly by location and used
20 identical language with regard to enforcement in Lin’s home
21 province of Fujian. The BIA may reasonably require evidence
22 of how the family planning laws are implemented in the
23 alien’s home province. See Shao v. Mukasey, 546 F.3d 138,
4
1 163-65 (2d Cir. 2008). Moreover, while Lin argues that IUD
2 insertion for women with only one child has increased, the
3 BIA has held that IUD insertion does not constitute
4 persecution absent aggravating factors. Matter of M-F-W- &
5 L-G-, 24 I&N Dec. 633, 636 (BIA 2008); see also Mei Fun Wong
6 v. Holder, 633 F.3d 64, 70-71 (2d Cir. 2011). Thus, the
7 BIA’s determination that there had been no change in country
8 conditions did not constitute an abuse of discretion. See
9 Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).
10 For the foregoing reasons, the petition for review is
11 DENIED. Petitioner’s pending request for oral argument in
12 this petition is DENIED in accordance with Federal Rule of
13 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
14 34.1(b).
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
18
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