Chunlong Lin v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-1263
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CHUNLONG LIN, a/k/a Chung Rong Lin, a/k/a Chungpong Lin
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A099-670-042)
Immigration Judge: Honorable Susan G. Roy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 1, 2014
Before: FISHER, VANASKIE and ALDISERT, Circuit Judges
(Opinion filed: August 6, 2014)
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OPINION
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PER CURIAM
Chun Rong Lin1 petitions for review of the Board of Immigration Appeals’ denial
of his motion to reopen. For the reasons that follow, we will deny the petition for review.
1
Petitioner has stated that his name was previously misspelled in documents related to
his case and that this is his preferred spelling.
I.
Lin, a citizen of China, entered the United States in 2006. Shortly thereafter, he
was served with a notice of appeal charging him as removable pursuant to 8 U.S.C.
§ 1182(a)(6)(A) as an alien present in the United States without being admitted or
paroled. At his immigration hearing, Lin conceded his removability as charged, but
sought asylum, withholding of removal, and relief under the Convention Against Torture
on the basis of China’s family planning policy and his fear of being forcibly sterilized
should he return to China. After the Immigration Judge (“IJ”) determined that Lin had
not credibly testified as to the number of forced abortions and sterilization attempts that
he and his wife had experienced, she entered an order of removal against Lin on February
4, 2009.
Lin appealed to the Board of Immigration Appeals (“the Board”) arguing, among
other issues, that the inconsistencies in his testimony were due to memory impairment
following a head injury. The Board reviewed the inconsistencies contained in the record
and compared Lin’s asylum applications with his testimony on direct and cross
examination, and found no clear error in the IJ’s adverse credibility determination. The
Board then stated that Lin had not provided any evidence to support his claim of memory
loss. The Board also noted that, even had Lin’s testimony been credible, “he would not
be able to establish asylum eligibility based on his wife’s forced abortion and
sterilization.” Accordingly, the Board dismissed Lin’s appeal on December 11, 2009.
2
More than three years later, Lin filed a motion to reopen with the Board. He
sought to present evidence to support his claim that he suffered from a cognitive
disability. The Board first found that Lin’s motion to reopen was untimely, as it had not
been filed within 90 days of the Board’s December 11, 2009 order. The Board also found
that Lin could not demonstrate that his evidence of cognitive disability was new or
previously unavailable because the documents he sought to submit were from 2001,
2002, and 2004 (i.e. before his removal hearing). Further, Lin had not argued that the
documents were previously unavailable. Finally, the Board found that no exceptional
circumstances existed warranting the exercise of its sua sponte discretion to reopen
proceedings. The Board therefore denied Lin’s motion. Lin, pro se, filed a timely
petition for review.
II.
We have jurisdiction under 8 U.S.C. § 1252, and we review denials of motions to
reopen under a deferential abuse of discretion standard.2 See Sevoian v. Ashcroft,
290 F.3d 166, 170, 171 (3d Cir. 2002). “Discretionary decisions of the [Board] will not
be disturbed unless they are found to be ‘arbitrary, irrational or contrary to law.’” Tipu v.
I.N.S., 20 F.3d 580, 582 (3d Cir. 1994). In general, motions to reopen must be filed
within 90 days from the date “on which the final administrative decision was rendered in
the proceeding sought to be reopened.” See 8 C.F.R. § 1003.2(c)(2); see also 8 U.S.C.
2
We lack jurisdiction to review the portion of the Board’s decision that denied sua sponte
reopening. See Pllumi v. Att’y Gen. of the U.S., 642 F.3d 155, 159 (3d Cir. 2011).
3
§ 1229a(c)(7)(C). Lin did not dispute that his motion to reopen was filed more than 90
days after the agency’s final decision. Rather, he argued that it took him three years to
obtain Chinese medical records documenting his cognitive impairments, and that he filed
the motion to reopen soon after he received them. Nevertheless, Lin did not establish a
basis for equitably tolling the time to file a motion to reopen.3 The Board thus did not act
irrationally, arbitrarily, or contrary to law in denying his motion. See Tipu, 20 F.3d at
582.
Accordingly, we will deny the petition for review.
3
While changed country conditions may serve as a basis for tolling the 90-day time
period, see Pllumi, 642 F.3d at 161, Lin has not argued the existence of changed country
conditions. Ineffective assistance of counsel can also serve as a basis for equitably
tolling the time to file a motion to reopen if substantiated and accompanied by a showing
of due diligence, see Mahmood v. Gonzales, 427 F.3d 248, 252 (3d Cir. 2005), but Lin
has not made such a claim.
4