Lin v. Holder

13-1943
Lin v. Holder
BIA
A087 481 027
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 14th day of April, two thousand fourteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 GERARD E. LYNCH,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 CHANG DONG LIN,
14 Petitioner,
15
16 v. 13-1943
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Sandra Cheng, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Leslie McKay, Assistant
27 Director; Kelly J. Walls, 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 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Chang Dong Lin, a native and citizen of
6 China, seeks review of an April 30, 2013, decision of the
7 BIA denying his motion to reopen his removal proceedings.
8 In re Chang Dong Lin, No. A087 481 027 (B.I.A. Apr. 30,
9 2013). We assume the parties’ familiarity with the
10 underlying facts and procedural history in this case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006) (per curiam). An alien seeking to reopen
14 proceedings is required to file a motion to reopen no later
15 than 90 days after the date on which the final
16 administrative decision was rendered. See 8 U.S.C.
17 § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2). There is no
18 dispute that Lin’s motion to reopen, filed in 2013, was
19 untimely because his order of removal became final in 2011.
20 See 8 U.S.C. § 1101(a)(47)(B)(I). Lin contends, however,
21 that his conversion to Christianity in the United States and
22 the Chinese government’s awareness of his mailing of
23 materials relating to Christianity to his wife’s underground
2
1 church in China constitute materially changed country
2 conditions excusing his motion from the applicable time
3 limitation.
4 We find that the BIA did not abuse its discretion in
5 denying Lin’s motion for failure to demonstrate his prima
6 facie eligibility for relief. See Jian Hui Shao v. Mukasey,
7 546 F.3d 138, 168 (2d Cir. 2008) (recognizing that an
8 alien’s “ability to secure reopening depends on a
9 demonstration of prima facie eligibility for [relief], which
10 means she must show a ‘realistic chance’ that she will be
11 able to obtain such relief” (citations omitted)). The BIA
12 reasonably relied on the country conditions evidence
13 indicating that China currently allows the practice of
14 Christianity, notwithstanding isolated reports of harassment
15 of some underground church members, a finding that Lin does
16 not specifically challenge on appeal. See Jian Xing Huang
17 v. INS, 421 F.3d 125, 128-29 (2d Cir. 2005) (holding that
18 absent solid support in the record for the petitioner’s
19 assertion that he would be persecuted, his fear was
20 “speculative at best”). While Lin does challenge the BIA’s
21 consideration of the statements from his wife and her fellow
22 underground church members, the BIA did not err in according
3
1 this evidence diminished weight because it was from
2 interested witnesses not subject to cross-examination and
3 was not supported by any independent evidence. See Matter
4 of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010)
5 (rejecting letters from applicant’s relatives and friends
6 because they were “interested witnesses not subject to
7 cross-examination”), overruled in part on other grounds by
8 Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012); see
9 also Xiao Ji Chen v. United States Dep’t of Justice, 471
10 F.3d 315, 342 (2d Cir. 2006) (holding that the weight
11 accorded to evidence lies largely within the agency’s
12 discretion).
13 Because the BIA did not abuse its discretion in denying
14 Lin’s motion for failure to demonstrate his prima facie
15 eligibility for relief, we decline to consider his challenge
16 to the agency’s alternative finding that country conditions
17 had not materially changed. See INS v. Bagamasbad, 429 U.S.
18 24, 25 (1976) (“As a general rule courts and agencies are
19 not required to make findings on issues the decision of
20 which is unnecessary to the results they reach.”).
21
22
4
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, the pending motion
3 for a stay of removal in this petition is DISMISSED as moot.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
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