Man Tat Lin v. Holder ( 2011 )

10-4757-ag
Lin v. Holder
BIA
A077 921 974
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 19th day of August, two thousand eleven.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 GERARD E. LYNCH,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _______________________________________
12
13 MAN TAT LIN, AKA WEN DA LIAN,
14 Petitioner,
15
16 v. 10-4757-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; David V. Bernal, Assistant
27 Director; Lance L. Jolley, Trial
28 Attorney, Office of Immigration
29 Litigation, United States Department
30 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Man Tat Lin, a native and citizen of the People’s
6 Republic of China, seeks review of an October 28, 2010,
7 decision of the BIA denying his motion to reopen. In re Man
8 Tat Lin, aka Wen Da Lian, No. A077 921 974 (B.I.A. Oct. 28,
9 2010). We assume the parties’ familiarity with the
10 underlying facts and procedural history of this case.
11 We review the BIA’s denial of Lin’s motion to reopen
12 for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006). When, as here, the BIA considers relevant
14 evidence of country conditions in evaluating a motion to
15 reopen, we review the BIA’s factual findings under the
16 substantial evidence standard. See Jian Hui Shao v.
17 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
18 An alien may file only one motion to reopen and must do
19 so within 90 days of the agency’s final administrative
20 decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).
21 Although Lin’s motion was indisputably untimely and number-
22 barred because it was filed more than nine years after the
23 agency’s final order of removal and because it was his
2
1 second motion, see 8 U.S.C. § 1229a(c)(7)(C)(i), there are
2 no time or numerical limitations for filing a motion to
3 reopen if it is “based on changed country conditions arising
4 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 proceeding.” 8 U.S.C.
8 § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).
9 The BIA did not abuse its discretion in finding that
10 Lin’s newly commenced practice of Christianity constituted a
11 change in his personal circumstances, rather than a change
12 in country conditions sufficient to excuse the untimely and
13 number-barred filing of his motion to reopen. See Li Yong
14 Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d
15 Cir. 2005) (explaining that a change in “personal
16 circumstances in the United States” did not constitute a
17 change in country conditions excusing the filing deadline
18 for motions to reopen). Moreover, the BIA did not err in
19 finding that the country conditions evidence that Lin
20 submitted in support of his motion to reopen did not
21 demonstrate a material change in country conditions excusing
22 the untimely and number-barred filing of his motion because
3
1 it indicated that since Lin’s 2000 deportation hearing, the
2 Chinese government had continually repressed unregistered
3 Christian churches in certain areas. See 8 U.S.C.
4 § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).
5 Furthermore, in light of evidence that the treatment of
6 unregistered religious groups varied widely from region to
7 region, the BIA reasonably found evidence that the Chinese
8 government had intensified its repression of unregistered
9 religious groups surrounding and following the 2008 Olympics
10 immaterial to Lin’s motion because that intensification
11 occurred in regions other than Lin’s home province. Cf.
12 Jian Hui Shao, 546 F.3d at 142, 149 (accepting the BIA’s
13 evidentiary framework requiring an applicant to demonstrate
14 that enforcement of the family planning policy is carried
15 out in his or her local area in a manner that would give
16 rise to a well-founded fear of persecution because of local
17 variations in the enforcement of that policy). Accordingly,
18 because the record does not compel the conclusion that the
19 treatment of practitioners in unregistered Christian
20 churches in Lin’s home province had changed materially since
21 the time of Lin’s 2000 hearing, see 8 U.S.C.
22 § 1229a(c)(7)(C)(ii); see also Jian Hui Shao, 546 F.3d at23 169, the BIA did not abuse its discretion in denying Lin’s
4
1 motion to reopen as untimely and number-barred. See
2 8 U.S.C. § 1229a(c)(7); see also 8 C.F.R. § 1003.2(c)(3).
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of
5 removal that the Court previously granted in this petition
6 is VACATED, and any pending motion for a stay of removal in
7 this petition is DISMISSED as moot. Any pending request for
8 oral argument in this petition is DENIED in accordance with
9 Federal Rule of Appellate Procedure 34(a)(2), and Second
10 Circuit Local Rule 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
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