Lin v. Barr ( 2019 )

17-4072
Lin v. Barr
BIA
A077 925 426
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 TO 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
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 28th day of October, two thousand nineteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 SUSAN L. CARNEY,
9 JOSEPH F. BIANCO,
10 Circuit Judges.
11 _____________________________________
12
13 GUANG HUI LIN,
14 Petitioner,
15
16 v. 17-4072
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Robert J. Adinolfi, Esq., New
24 York, NY.
25
26 FOR RESPONDENT: Joseph H. Hunt, Assistant
27 Attorney General; Bernard A.
28 Joseph, Senior Litigation Counsel;
29 Anthony O. Pottinger, Trial
30 Attorney, Office of Immigration
31 Litigation, United States
32 Department of Justice, Washington,
33 DC.
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 Guang Hui Lin, a native and citizen of the
6 People’s Republic of China, seeks review of a December 11,
7 2017 decision of the BIA denying his motion to reopen his
8 removal proceedings. In re Guang Hui Lin, No. A 077 925 426
9 (B.I.A. Dec. 11, 2017). We assume the parties’ familiarity
10 with the underlying facts and procedural history in this case.
11 We review the denial of a motion to reopen for abuse of
12 discretion and the BIA’s country conditions determination for
13 substantial evidence. See Jian Hui Shao v. Mukasey, 546 F.3d
14 138, 168-69 (2d Cir. 2008). An alien seeking to reopen may
15 file one motion to reopen no later than 90 days after the
16 agency issues its final administrative decision. 8 U.S.C.
17 § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). It is
18 undisputed that Lin’s 2017 motion to reopen was untimely
19 because he filed it more than a decade after the BIA’s final
20 administrative decision. See 8 U.S.C. § 1229a(c)(7)(C)(i);
2
1 8 C.F.R. § 1003.2(c)(2). However, noncompliance with the 90-
2 day time limitation is excused if the motion is filed in order
3 to apply for asylum “based on changed country conditions
4 arising in the country of nationality or the country to which
5 removal has been ordered, if such evidence is material and
6 was not available and would not have been discovered or
7 presented at the previous proceedings.” 8 U.S.C.
8 § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).
9 “In determining whether evidence accompanying a motion
10 to reopen demonstrates a material change in country
11 conditions that would justify reopening, [the agency]
12 compare[s] the evidence of country conditions submitted with
13 the motion to those that existed at the time of the merits
14 hearing below.” In re S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA
15 2007). Where conditions vary within a country, the movant
16 must show a change in the relevant geographic area. See Jian
17 Hui Shao, 546 F.3d at 170. Substantial evidence supports the
18 BIA’s conclusion that Lin did not establish a material change
19 in conditions in his home province of Fujian.
20 The country conditions evidence reveals that the Chinese
3
1 government’s treatment of Christians has been consistent
2 since Lin’s 2002 hearing. The record reflects that
3 Christians attending unauthorized churches in China have
4 faced repression since at least the mid-1990s, when China
5 initiated a campaign to suppress unregistered and
6 unauthorized religious groups. In 2001, “government respect
7 for religious freedom remained poor,” as described by the
8 U.S. State Department. Certified Administrative Record
9 (“CAR”) at 1696–97 (2001 U.S. State Dep’t Country Report on
10 Human Rights Practices). Repression of unregistered
11 religious groups, including underground Christian groups, had
12 intensified in some areas, although it had “eased somewhat”
13 following a period of heightened repression in Fujian
14 Province. Id.
15 Lin cites a 2002 State Department report as evidence that
16 China was more tolerant of Christians then than now.
17 Petitioner’s Brief at 11, citing CAR at 240–45 (2002 U.S.
18 State Dep’t Country Report on Human Rights Practices (“2002
19 Report”)). However, the same report concluded that
20 “[o]verall, government respect for religious freedom remained
4
1 poor, and crackdowns against unregistered groups, including
2 underground Protestant and Catholic groups . . . continued.”
3 Id. With respect to Fujian Province, it reported that the
4 recent detention of two underground priests had “created a
5 generalized fear that other detentions might follow.” Id.
6 A report from 2016 described a continuation of these
7 conditions: the registration policy persisted, with some
8 toleration for unregistered religious groups and periodic
9 crackdowns. CAR at 447–56 (2016 Annual Report of the
10 Congressional-Executive Commission on China (“2016 Report”)).
11 Moreover, the 2016 Report does not support a general
12 conclusion that repression had escalated in Fujian Province.
13 Lin raises three principal challenges to the BIA’s
14 conclusions. First, he argues that 2001 and 2002 State
15 Department reports show that repression has escalated, and
16 the BIA mischaracterized these reports by evaluating them
17 differently than did the Seventh Circuit in Shu Han Liu v.
18 Holder, 718 F.3d 706 (7th Cir. 2013). This argument is
19 unavailing. Although addressing the same region and a
20 similar time frame, the Seventh Circuit was presented with a
5
1 different set of evidentiary materials concerning country
2 conditions, and the BIA was not required to reach the same
3 conclusion on a different evidentiary basis. See INS v.
4 Abudu, 485 U.S. 94, 104–05 (1988) (movant bears the burden of
5 introducing evidence in support of a motion to reopen); Xiao
6 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.
7 2006) (the weight to be afforded evidence in immigration
8 proceedings “lies largely within the discretion” of the
9 finder of fact (brackets and quotation marks omitted)). As
10 discussed above, the totality of the record here provides
11 substantial evidence in support of the BIA’s conclusion.
12 Second, Lin argues that the BIA ignored portions of the
13 record. The BIA gave “reasoned consideration to the
14 petition, and made adequate findings,” and did not need to
15 “expressly parse or refute on the record each individual
16 argument or piece of evidence offered by the petitioner.”
17 Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87 (2d Cir. 2007); see
18 also Xiao Ji Chen, 471 F.3d at 336 n.17 (“[W]e presume that
19 [the agency] has taken into account all of the evidence before
20 [it], unless the record compellingly suggests otherwise.”).
6
1 Finally, Lin argues that the BIA should not have relied
2 on the 1998 and 2001 State Department reports because they
3 were not part of the administrative record. He is incorrect:
4 he filed the reports in support of his original asylum
5 application and they were duly incorporated into the record.
6 Therefore, because the country conditions evidence
7 supports the BIA’s conclusion that Lin failed to demonstrate
8 a material worsening of conditions for Christians in China
9 between 2001 and 2017 as needed to excuse him from the 90-
10 day filing deadline for his motion, the BIA did not abuse its
11 discretion in denying his motion to reopen. See 8 U.S.C.
12 § 1229a(c)(7)(C). Because this finding is dispositive, we
13 do not reach the BIA’s alternative conclusion that Lin failed
14 to establish prima facie eligibility for relief. See INS v.
15 Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts
16 and agencies are not required to make findings on issues the
17 decision of which is unnecessary to the results they reach.”).
7
1 For the foregoing reasons, the petition for review is
2 DENIED. All pending motions and applications are DENIED and
3 stays VACATED.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe,
6 Clerk of Court
7
8