Zhi Lin v. Holder , 453 F. App'x 119 ( 2012 )

10-4545-ag
Lin v. Holder
BIA
A078 861 463
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.
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 4th day of January, two thousand twelve.
PRESENT:
JON O. NEWMAN,
ROBERT A. KATZMANN,
DENNY CHIN,
Circuit Judges.
_______________________________________
ZHI LIN, AKA ONG LIN KIAT,
Petitioner,
v. 10-4545-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Gary J. Yerman, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Lyle D. Jentzer, Senior Litigation
Counsel; Charles S. Green, III,
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
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.
Zhi Lin, a native and citizen of the People’s Republic of
China, seeks review of an October 12, 2010, decision of the
BIA denying his motion to reopen. In re Zhi Lin, aka Ong Ling
Kiat, No. A078 861 463 (B.I.A. Oct. 12, 2010). We assume the
parties’ familiarity with the underlying facts and procedural
history of this case.
We review the BIA’s denial of Lin’s motion to reopen for
abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
Cir. 2006). When, as here, the BIA considers relevant
evidence of country conditions in evaluating a motion to
reopen, we review the BIA’s factual findings under the
substantial evidence standard. See Jian Hui Shao v. Mukasey,
546 F.3d 138, 169 (2d Cir. 2008).
-2-
An alien may file only one motion to reopen and must do
so within 90 days of the agency’s final administrative
decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).
Although Lin’s motion was indisputably untimely because it was
filed more than three years after the agency’s final order of
removal, see 8 U.S.C. § 1229a(c)(7)(C)(i), there are no time
limitations for filing a motion to reopen if it is “based on
changed country conditions arising in the country of
nationality or the country to which removal has been ordered,
if such evidence is material and was not available and would
not have been discovered or presented at the previous
proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.
§ 1003.2(c)(3)(ii).
The BIA did not abuse its discretion in finding that
Lin’s newly commenced practice of Christianity constituted a
change in his personal circumstances, rather than a change in
country conditions sufficient to excuse the untimely filing of
his motion to reopen. See Li Yong Zheng v. U.S. Dep’t of
Justice, 416 F.3d 129, 130-31 (2d Cir. 2005) (explaining that
a change in “personal circumstances in the United States” did
not constitute a change in country conditions excusing the
filing deadline for motions to reopen). Moreover, the BIA
-3-
reasonably concluded that the country conditions evidence that
Lin submitted in support of his motion to reopen did not
demonstrate a material change in conditions excusing the
untimely filing of his motion because the evidence showed only
that, since Lin’s 2005 removal proceedings, the Chinese
government had continually repressed the practice of
Christianity in certain areas. See 8 U.S.C. §
1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).
Furthermore, although the evidence indicates that the Chinese
government may have intensified its repression of unregistered
religious groups in certain regions in the time period leading
up to the 2008 Olympics, that intensification was not material
to Lin, as he was from a province not mentioned with respect
to the intensification and filed his motion more than one year
after the Olympics had concluded. See 8 U.S.C. §
1229a(c)(7)(C)(ii); see also Jian Hui Shao, 546 F.3d at 169.
Accordingly, the BIA did not abuse its discretion in denying
Lin’s motion to reopen as untimely. See 8 U.S.C. §
1229a(c)(7); see also 8 C.F.R. § 1003.2(c)(3).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
-4-
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument in
this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
-5-