Pursuant to Federal Rule of Appellate Procedure 1

43(c)(2), Attorney General Eric H. Holder, Jr., is

automatically substituted for former Attorney General

Michael B. Mukasey as respondent in this case.

07-4869-ag (L); 08-0902-ag (Con)

Lin v. Holder

BIA

A077 650 636

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 Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

4 New York, on the 18 day of May, two thousand ten. th

5

6 PRESENT:

7 GUIDO CALABRESI,

8 PETER W. HALL,

9 DENNY CHIN,

10 Circuit Judges.

11 _________________________________________

12 XUE YU LIN,

13 Petitioner, 

14

15 v. 07-4869-ag (L);

16 08-0902-ag (Con)

17 NAC

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,1

20 Respondent.

21 _________________________________________

22 FOR PETITIONER: Alexander K. Yu, New York, NY.

23

24 FOR RESPONDENT: Tony West, Assistant Attorney
2

1 General, Civil Division, Ernesto H.

2 Molina, Jr., Assistant Director,

3 Gladys M. Steffens Guzmán, Trial

4 Attorney, Office of Immigration

5 Litigation, United States Department

6 of Justice, Washington, D.C.

7

8 UPON DUE CONSIDERATION of these consolidated petitions

9 for review of two Board of Immigration Appeals (“BIA”)

10 decisions, it is hereby ORDERED, ADJUDGED, AND DECREED, that

11 the petitions for review are DENIED. 

12 Xue Yu Lin, a native and citizen of the People’s

13 Republic of China, seeks review of an October 3, 2007, order

14 of the BIA denying her motion to reopen, In re Xue Yu Lin,

15 No. A077 650 636 (B.I.A. Oct. 3, 2007), and a January 24,

16 2008, order of the BIA denying her motion to reconsider, In

17 re Xue Yu Lin, No. A077 650 636 (B.I.A. Jan. 24, 2008). We

18 assume the parties’ familiarity with the underlying facts

19 and procedural history in this case. 

20 We review the agency’s denial of a motion to reopen or

21 reconsider for abuse of discretion. See Kaur v. BIA, 413

22 F.3d 232, 233 (2d Cir. 2005) (per curiam); Jin Ming Liu v.

23 Gonzales, 439 F.3d 109, 111 (2d Cir. 2006). 

24 I. Motion to Reopen, 07-4869-ag (L)

25 The agency did not abuse its discretion in denying

26 Lin’s motion to reopen as untimely and number barred because
3

1 it was her third motion to reopen and the BIA entered a

2 final order of removal in June 2003. See 8 C.F.R. 

3 § 1003.2(c)(2). Furthermore, the BIA did not abuse its

4 discretion in declining to equitably toll the time period

5 for filing Lin’s motion to reopen because she failed to

6 demonstrate that she exercised due diligence in pursuing her

7 ineffective assistance of counsel claim. See Cekic v. INS,

8 435 F.3d 167, 170 (2d Cir. 2006). The BIA reasonably relied

9 in part on Lin’s failure to take any actions in her case for

10 the almost two and a half years between the denial of her

11 second motion to reopen and the filing of her third motion

12 to reopen. See Rashid v. Mukasey, 533 F.3d 127, 131 (2d Cir.

13 2008). Moreover, the BIA did not err in finding that Lin

14 knew of or should have discovered the alleged ineffective

15 assistance of counsel after she filed her appeal to the BIA

16 or when she filed her two previous motions to reopen or

17 reconsider. See Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d

18 Cir. 2007). 

19 In addition, the BIA did not abuse its discretion in

20 finding that Lin failed to establish changed country

21 conditions excepting her motion to reopen from the time and

22 numerical limitations. See Wei Guang Wang v. BIA, 437 F.3d
4

1 270, 274 (2d Cir. 2006); Yuen Jin v. Mukasey, 538 F.3d 143,

2 155 (2d Cir. 2008). Contrary to Lin’s argument, a

3 reasonable fact-finder would not be compelled to conclude

4 that the BIA failed to consider the evidence she submitted. 

5 See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 336

6 n.17 (2d Cir. 2006). Moreover, the BIA reasonably declined

7 to credit that evidence given the IJ’s underlying adverse

8 credibility determination. See Qin Wen Zheng v. Gonzales,

9 500 F.3d 143, 147 (2d Cir. 2007). 

10 Accordingly, the BIA did not abuse its discretion in

11 denying Lin’s untimely and number-barred motion to reopen. 

12 See 8 U.S.C. § 1229a(c)(7)(C)(ii); Kaur, 413 F.3d at 233;

13 Cekic, 435 F.3d at 170.

14 II. Motion to Reconsider, 08-0902-ag (Con)

15 Nor did the BIA abuse its discretion in denying Lin’s

16 motion to reconsider. Jin Ming Liu, 439 F.3d at 111. In

17 its decision, the BIA revisited its analysis of the evidence

18 Lin had submitted with her motion to reopen and reaffirmed

19 its conclusion that such evidence failed to establish

20 changed country conditions. See Wei Guang Wang, 437 F.3d at

21 274. Furthermore, contrary to Lin’s argument, the BIA

22 properly found no error in its reliance on the IJ’s prior

23 adverse credibility finding to discredit the evidence Lin
5

1 submitted. See Zheng, 500 F.3d at 147.

2 For the foregoing reasons, the consolidated petitions

3 for review are DENIED. As we have completed our review, any

4 stay of removal that the Court previously granted is

5 VACATED, and any pending motion for a stay of removal is

6 DISMISSED as moot. Any pending request for oral argument is

7 DENIED in accordance with Federal Rule of Appellate

8 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

9 FOR THE COURT: 

10 Catherine O’Hagan Wolfe, Clerk

11

12