2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-1-2011

Jia Lin v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-4335

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-4335

___________

JIA YING LIN,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A077-997-644)

Immigration Judge: Charles Honeyman

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 1, 2011

Before: MCKEE, Chief Judge, SMITH and GARTH, Circuit Judges

(Opinion filed: April 1, 2011)

___________

OPINION

___________

PER CURIAM

Jia Ying Lin is a Chinese citizen from Fujian province who attempted to 

unlawfully enter the United States with a fake Taiwanese passport. Lin was charged with 

removability under INA §§ 212(a)(6)(C)(i) and 212(a)(7)(A)(i)(I), and placed in removal 
2

proceedings. An Immigration Judge sitting in York, Pennsylvania denied his applications 

for asylum, withholding of removal, and relief under the Convention Against Torture. 

On October 5, 2005, the Immigration Judge‟s decision was affirmed by the Board of 

Immigration Appeals (BIA), and Lin was ordered to be removed to China. We denied 

Lin‟s petition for review. See Lin v. Att‟y Gen., 214 F. App‟x 237 (3d Cir. 2007). 

Over four years after the BIA issued its decision, Lin filed a motion to reopen

removal proceedings. In that motion, Lin argued that his “personal circumstances as well 

as country conditions in China have changed greatly since the Immigration Judge issued 

the Order of Removal.” Specifically, Lin described his recent political activism in the 

United States: he joined the “Federation for a Democratic China” (FDC), wrote articles 

for the FDC, participated in FDC-sponsored protests, and “distributed propaganda to 

promote the FDC.” Lin stated that “Chinese authorities have discovered [his] 

membership and involvement with the FDC in the United States, and have expressed 

their desire to arrest him.”

In an October 15, 2010 decision, the BIA denied Lin‟s motion. The BIA 

determined that the motion was untimely, and that Lin “has not demonstrated that he is 

subject to any of the exceptions to the limitations on motions to reopen.” Specifically, 

the BIA determined that Lin‟s FDC activities “are tantamount to a change in personal 

circumstances and do not constitute „changed country conditions arising in the country of 

nationality.‟” In addition, the BIA stated that Lin “does not meaningfully identify how 

[the evidence submitted] reflects „changed‟ conditions in China regarding the treatment 
3

of political dissidents, political organizations, or other similarly situated.” The BIA also 

declined to exercise its sua sponte reopening authority. This petition for review 

followed.1 

The BIA did not abuse its discretion by denying Lin‟s motion to reopen removal 

proceedings. See Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005) (providing 

standard of review). To begin with, there is no question that Lin‟s motion to reopen was 

untimely filed. See 8 C.F.R. § 1003.2(c)(2). We also conclude that Lin has not shown 

“changed circumstances” in China, as an exception to § 1003.2(c)(2), for substantially the 

reasons given in the BIA‟s decision. See also Liu v. Att‟y Gen., 555 F.3d 145, 151 (3d 

Cir. 2009) (alien who illegally remains in the United States following an order of removal 

cannot file successive asylum application based on change in personal circumstances 

unless accompanied by motion to reopen based on changed country conditions). Finally, 

Lin does not dispute that we lack jurisdiction to review the BIA‟s refusal to reopen 

proceedings sua sponte. See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003).

Accordingly, the petition for review will be denied. 

 

1

 We have jurisdiction under 8 U.S.C. § 1252. Kucana v. Holder, --- U.S. ---, 130 

S. Ct. 827, 840 (2010).