Wei Lin v. Attorney General of the United States ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-3523
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WEI LIN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A077-293-671)
Immigration Judge: Honorable Esmeralda Cabrera
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Submitted Pursuant to Third Circuit LAR 34.1(a)
February 19, 2013
Before: FUENTES, VANASKIE and VAN ANTWERPEN, Circuit Judges
(Opinion filed: February 28, 2013 )
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OPINION
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PER CURIAM
Wei Lin, who proceeds pro se, seeks review of a Board of Immigration Appeals
(BIA) order denying his motion to reopen immigration proceedings. Lin, who is a citizen
of the People’s Republic of China, originally applied for asylum and related relief based
on the one-child policy. An Immigration Judge denied his applications, finding that Lin
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had failed to meet the required standard under the Immigration and Nationality Act, and
the BIA denied Lin’s appeal.
Several years later, Lin filed an untimely motion to reopen. According to Lin, he
became a Christian in 2008, following the death of his grandfather, and he communicated
his newfound enthusiasm for Christianity to his family back in China, which drew
suspicion from local authorities. In his motion, Lin therefore argued that he was entitled
to a consideration of his motion to reopen based on the ―changed country conditions‖
exception to the time limitations on pursuing reopening. The BIA held, in essence, that
even if it were to discount problems in Lin’s new evidentiary submissions, none of Lin’s
new evidence showed a material change of circumstances in China that would permit him
to proceed on his untimely motion to reopen. Lin timely petitioned for review.1
We find no abuse of discretion in the BIA’s decision. While Lin’s personal
circumstances have certainly changed, he has not persuasively shown that the country
conditions in China—or even his village—have changed materially since he was before
the Immigration Judge; his ―choice to engage in such . . . activities after being ordered
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We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review the denial of a motion to
reopen a final agency order of removal. Cruz v. Att’y Gen., 452 F.3d 240, 246 (3d Cir.
2006). We do so for abuse of discretion, and the BIA’s denial of a motion to reopen will
be upheld unless ―arbitrary, irrational, or contrary to law.‖ Rranci v. Att’y Gen., 540
F.3d 165, 171 (3d Cir. 2008). In general, motions to reopen must be filed within 90 days
of the date of the final order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i). However, there is
―no time limit on the filing of a motion to reopen if the basis of the motion is . . . 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 ―previous proceeding‖ refers to the hearing
before the Immigration Judge. Filja v. Gonzales, 447 F.3d 241, 253 (3d Cir. 2006).
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deported does not support application of the changed country conditions exception in 8
U.S.C. § 1229a(c)(7)(C)(ii).‖ Khan v. Att’y Gen., 691 F.3d 488, 497 (3d Cir. 2012). In
other words, changed personal circumstances alone do not suffice, as Lin must also
demonstrate changed country conditions—and he has not done so. Id. The mere fact that
authorities in his village recently took action against his family does not show that
conditions have worsened.2 Hence, we must deny this petition for review.
2
In his brief, Lin argues that his change in personal circumstances could create a change
in country circumstances. He insists that because the regulations affecting asylum
applications account for changed personal circumstances in relation to one-year asylum
deadline exceptions, see 8 C.F.R. § 208.4(a)(4)(i)(B), the BIA should recognize a similar
exception for reopening with regard to ―activities an applicant becomes involved in
outside‖ of the home country. Pet’r’s Br. 11–12. However, Lin fails to realize that,
while an alien may file a successive asylum application based on changed personal
circumstances or changed country conditions pursuant to 8 U.S.C. § 1158(a)(2)(D), this
applies only during the 90-day reopening window or at any time before the entry of the
final order of removal. Afterwards, satisfying the changed-country-conditions
requirement is necessary to successfully reopen. See Liu v. Att’y Gen., 555 F.3d 145,
150 (3d Cir. 2009).
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