Lin v. Barr ( 2020 )

18-2074
Lin v. Barr
BIA
Nelson, IJ
A 072 183 175
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 29th day of October, two thousand twenty.
5
6 PRESENT:
7 DENNIS JACOBS,
8 DENNY CHIN,
9 JOSEPH F. BIANCO,
10 Circuit Judges.
11 _____________________________________
12
13 XIANG QIU LIN,
14 Petitioner,
15
16 v. 18-2074
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Xiang Qiu Lin, pro se, San
24 Lorenzo, CA.
25
26 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
27 Assistant Attorney General; Carl
28 H. McIntyre, Assistant Director;
1 Benjamin J. Zeitlin, Trial
2 Attorney, Office of Immigration
3 Litigation, United States
4 Department of Justice, Washington,
5 DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Xiang Qiu Lin, a native and citizen of the
11 People’s Republic of China, seeks review of a June 21,
12 2018, decision of the BIA affirming a January 5, 2018,
13 decision of an Immigration Judge (“IJ”) denying Lin’s
14 motion to reopen. In re Xiang Qiu Lin, No. A 072 183 175
15 (B.I.A. Jun. 21, 2018), aff’g No. A 072 183 175 (Immig.
16 Ct. N.Y. City Jan. 5, 2018). We assume the parties’
17 familiarity with the underlying facts and procedural
18 history in this case.
19 Under the circumstances of this case, we review both
20 the IJ’s and BIA’s decisions “for the sake of
21 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448
22 F.3d 524, 528 (2d Cir. 2006). We review the agency’s
23 denial of a motion to reopen for abuse of discretion but
24 review any findings regarding changed country conditions
2
1 for substantial evidence. See Jian Hui Shao v. Mukasey,
2 546 F.3d 138, 168–69 (2d Cir. 2008). “An abuse of
3 discretion may be found in those circumstances where the
4 [BIA’s] decision provides no rational explanation,
5 inexplicably departs from established policies, is devoid
6 of any reasoning, or contains only summary or conclusory
7 statements; that is to say, where the [BIA] has acted in an
8 arbitrary or capricious manner.” Ke Zhen Zhao v. U.S.
9 Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (internal
10 citations omitted).
11 An alien seeking to reopen proceedings to apply for new
12 relief may file one motion to reopen no later than 90 days
13 after the date on which the final administrative decision
14 was rendered. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.
15 § 1003.23(b)(1). It is undisputed that Lin’s 2017 motion
16 to reopen was untimely and number barred because he filed
17 it 17 years after the IJ ordered him deported in absentia
18 in 2000 and he had filed a prior motion to reopen in 2014.
19 The filing period, however, may be tolled for ineffective
20 assistance of counsel if the movant shows that he has
21 exercised due diligence throughout the period he seeks to
3
1 toll. Rashid v. Mukasey, 533 F.3d 127, 130–31 (2d Cir.
2 2008). Moreover, the number and time limitations for
3 filing a motion to reopen do not apply if reopening is
4 sought to apply for asylum and the motion is “based on
5 changed country conditions arising in the country of
6 nationality or the country to which removal has been
7 ordered, if such evidence is material and was not available
8 and would not have been discovered or presented at the
9 previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see
10 also 8 C.F.R. § 1003.23(b)(4)(i).
11 The agency did not err in declining to reopen based on
12 ineffective assistance of counsel. First, as the
13 Government notes, Lin does not meaningfully argue in his
14 brief that he diligently pursued his claim, and he has
15 therefore waived review of the issue. See Yueqing Zhang v.
16 Gonzales, 426 F.3d 541, 541 n.1, 545 n.7 (2d Cir. 2005)
17 (issues not sufficiently argued are deemed waived).
18 Regardless of waiver, there is no error. To satisfy the
19 diligence requirement, “an alien is required to exercise
20 due diligence both before and after he has or should have
21 discovered [the] ineffective assistance.” Rashid, 533 F.3d
4
 1 at 132 (emphasis omitted). “This includes both the period
2 of time before the ineffective assistance of counsel was or
3 should have been discovered and the period from that point
4 until the motion to reopen is filed.” Id. Lin appears to
5 have discovered that he was ordered deported in early 2000,
6 when he visited his attorney’s office shortly after the IJ
7 ordered him removed in absentia. Lin did not detail any
8 efforts to remedy his situation from early 2000 until he
9 filed his motions to reopen in 2014 and 2017. Accordingly,
10 the agency did not err in finding a lack of due diligence.
11 See Jian Hua Wang v. B.I.A., 508 F.3d 710, 715 (2d Cir.
12 2007) (recognizing that there is no time period that is per
13 se unreasonable but citing several cases where “a
14 petitioner who wait[ed] two years or longer to take steps
15 to reopen a proceedings ha[d] failed to demonstrate due
16 diligence.”).
17 As to his claim of changed country conditions, Lin’s
18 practice of Christianity is a change in his personal
19 circumstances that does not excuse the time and number
20 limitations on his motion to reopen. See Wei Guang Wang v.
21 B.I.A., 437 F.3d 270, 273–74 (2d Cir. 2006); Yuen Jin v.
5
1 Mukasey, 538 F.3d 143, 155 (2d Cir. 2008). To the extent
2 that Lin argues that conditions have worsened for
3 Christians in China, his briefs to the BIA and this Court
4 discuss only more recent events and do not make the
5 necessary comparison to conditions before his 2000
6 deportation order. See In re S-Y-G-, 24 I. & N. Dec. 247,
7 253 (B.I.A. 2007) (“In determining whether evidence
8 accompanying a motion to reopen demonstrates a material
9 change in country conditions that would justify reopening,
10 [the agency] compare[s] the evidence of country conditions
11 submitted with the motion to those that existed at the time
12 of the merits hearing below.”). Moreover, the evidence in
13 the record does not reflect a material change. A 1995
14 State Department report stated that the Chinese
15 government’s “attitude towards religion has vacillated
16 since” 1979 and reported a growing number of persecution
17 claims from members of unsanctioned Christian churches.
18 Lin did not provide any country conditions evidence to
19 support his 2017 motion to reopen, and the references in
20 his motion to reopen and brief to this Court simply reflect
21 a continuation of religious repression.
6
1 Accordingly, because Lin did not exercise due diligence
2 in pursuing his ineffective assistance of counsel claim or
3 demonstrate a material change in conditions for Christians
4 in China, he did not satisfy any exception to the time and
5 number limitations on his motion to reopen and the agency
6 did not abuse its discretion in denying his motion as time
7 and number barred. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i)–
8 (ii); Rashid, 533 F.3d at 132–33.
9 For the foregoing reasons, the petition for review is
10 DENIED. All pending motions and applications are DENIED
11 and stays VACATED.
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe,
14 Clerk of Court
7