Lin v. Barr

18-1528
Lin v. Barr
BIA
A078 286 967
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 26th day of December, two thousand nineteen.
5
6 PRESENT:
7 DEBRA ANN LIVINGSTON,
8 CHRISTOPHER F. DRONEY,
9 MICHAEL H. PARK,
10 Circuit Judges.
11 _____________________________________
12
13 MIN FAN LIN, AKA MIN FANG LIN,
14 Petitioner,
15
16 v. 18-1528
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Min Fan Lin, pro se, Columbus,
24 OH.
25
26 FOR RESPONDENT: Joseph H. Hunt, Assistant
27 Attorney General; Liza S. Murcia,
28 Senior Litigation Counsel;
29 Kathleen Kelly Volkert, 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 Min Fan Lin, a native and citizen of the
6 People’s Republic of China, seeks review of an April 23, 2018,
7 decision of the BIA, denying her motion to reopen. In re Min
8 Fan Lin, No. A078 286 967 (B.I.A. Apr. 23, 2018). We assume
9 the parties’ familiarity with the underlying facts and
10 procedural history.
11 The applicable standards of review are well established.
12 See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir.
13 2008). In her motion to reopen, Lin asserted that conditions
14 for Falun Gong practitioners had worsened in China, and that
15 Chinese officials had discovered that she has been practicing
16 Falun Gong in the United States and sending Falun Gong-related
17 materials to China. She argued that these conditions excused
18 the time and numerical limitations applicable to her motion
19 and established her prima facie eligibility for asylum and
20 related relief.
21 It is undisputed that Lin’s 2017 motion was untimely and
22 number-barred because it was her second motion and was filed
2
1 more than 13 years after her removal order became final in
2 2004. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.
3 § 1003.2(c)(2). There is, however, an exception to the time
4 and numerical limits if the movant seeks asylum and the motion
5 is “based on changed country conditions arising in the country
6 of 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 proceedings.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see
10 also 8 C.F.R. § 1003.2(c)(3)(ii). The BIA did not err in
11 finding that Lin failed to establish a material change in
12 conditions in China.
13 “In determining whether evidence accompanying a motion
14 to reopen demonstrates a material change in country
15 conditions that would justify reopening, [the BIA] compare[s]
16 the evidence of country conditions submitted with the motion
17 to those that existed at the time of the merits hearing
18 below.” In re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007).
19 As the BIA found, the evidence demonstrates that the Chinese
20 government has continuously repressed and mistreated Falun
21 Gong practitioners since at least 1999, well before Lin’s
22 2003 hearing. See In re S-Y-G-, 24 I. & N. Dec. at 257
3
1 (“Change that is incremental or incidental does not meet the
2 regulatory requirements for late motions.”). Further, the
3 BIA did not err in declining to credit Lin’s evidence that
4 officials had detained her sister for practicing Falun Gong
5 and in so doing had discovered Lin’s Falun Gong activities.
6 In addition to the agency’s underlying determination that Lin
7 was not credible, Lin’s sister’s unsworn statement was
8 prepared for litigation by an interested witness, and her
9 sister’s detention certificate did not include an address of
10 the detention facility, was unsigned, and was not
11 authenticated in any manner. See Qin Wen Zheng v. Gonzales,
12 500 F.3d 143, 146-49 (2d Cir. 2007) (agency may decline to
13 credit uncorroborated individualized evidence submitted with
14 a motion to reopen by an alien who was found not credible in
15 the underlying proceeding); Y.C. v. Holder, 741 F.3d 324, 334
16 (2d Cir. 2013) (deferring to agency’s decisions regarding the
17 weight of evidence and finding no error in decision not to
18 credit relative’s letter from China because it was unsworn
19 and from an interested witness).
20 Because the BIA reasonably concluded that Lin failed to
21 demonstrate a material change in conditions in China, it did
22 not abuse its discretion in denying her motion as untimely
4
1 and number-barred. See 8 U.S.C. § 1229a(c)(7)(A), (C). We
2 do not reach the BIA’s alternative basis for denying Lin’s
3 motion; i.e., her failure to establish her prima facie
4 eligibility for relief. See INS v. Bagamasbad, 429 U.S. 24,
5 25 (1976) (“As a general rule courts and agencies are not
6 required to make findings on issues the decision of which is
7 unnecessary to the results they reach.”).
8 For the foregoing reasons, the petition for review is
9 DENIED. All pending motions and applications are DENIED and
10 stays VACATED.
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe,
13 Clerk of Court
14
5