09-0815-ag

Lin v. Holder

BIA

A095 716 374

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS

FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1

AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A

LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST

ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:

“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER

TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED

BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS

PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT

HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE

ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE

DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

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 23 day of December, two thousand nine. rd

5

6 PRESENT:

7 RALPH K. WINTER,

8 PIERRE N. LEVAL,

9 REENA RAGGI,

10 Circuit Judges.

11 _________________________________________

12

13 NEN MEI LIN, a.k.a. NEN-MEI LIN,

14 Petitioner, 

15

16 v. 09-0815-ag

17 NAC

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent.

21 _________________________________________

22

23 FOR PETITIONER: Oleh R. Tustaniwsky, Hualian Law

24 Offices, New York, New York.

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General; James Grimes, Senior

28 Litigation Counsel; Elizabeth Young,

29 Trial Attorney, Office of Immigration
2

1 Litigation, United States Department

2 of Justice, Washington, D.C.

3

4 UPON DUE CONSIDERATION of this petition for review of a

5 Board of Immigration Appeals (“BIA”) decision, it is hereby

6 ORDERED, ADJUDGED, AND DECREED, that the petition for review

7 is DENIED.

8 Petitioner Nen Mei Lin, a native and citizen of the

9 People’s Republic of China, seeks review of the January 30,

10 2009 order of the BIA denying her motion to reopen. In re

11 Nen Mei Lin, No. A095 716 374 (B.I.A. Jan. 30, 2009). We

12 assume the parties’ familiarity with the underlying facts

13 and procedural history of the case.

14 We review the BIA’s denial of a motion to reopen for

15 abuse of discretion, Ali v. Gonzales, 448 F.3d 515, 517 (2d

16 Cir. 2006), mindful of “the Supreme Court’s admonition that

17 motions to reopen are disfavored,” Maghradze v. Gonzales,

18 462 F.3d 150, 154 (2d Cir. 2006) (citing INS v. Abudu, 485

19 U.S. 94, 107 (1988) (“There is a strong public interest in

20 bringing litigation to a close as promptly as is consistent

21 with the interest in giving the adversaries a fair

22 opportunity to develop and present their respective

23 cases.”)); see also INS v. Doherty, 502 U.S. 314, 323

24 (1992). When the BIA evaluates country conditions evidence

25 submitted with a motion to reopen, we review its findings
3

1 for substantial evidence. See Jian Hui Shao v. Mukasey, 546

2 F.3d 138, 169 (2d Cir. 2008). Here, the BIA did not abuse

3 its discretion in denying Lin’s motion to reopen based on

4 her failure to establish prima facie eligibility for relief. 

5 See Abudu, 485 U.S. at 104. 

6 The BIA reasonably concluded that, notwithstanding her

7 membership in the China Democracy Party (“CDP”) in the

8 United States, Lin failed to show that the Chinese

9 government would single her out for persecution upon her

10 return to China, or that the Chinese government has a

11 pattern or practice of persecuting overseas members of the

12 CDP who return to China. See Hongsheng Leng v. Mukasey, 528

13 F.3d 135, 143 (2d Cir. 2008). The BIA also reasonably

14 concluded that the evidence in the record did not describe

15 the persecution or torture of individuals similarly situated

16 to Lin. See Jian Xing Huang v. INS, 421 F.3d 125, 128 (2d

17 Cir. 2005). Contrary to Lin’s argument, the BIA analyzed

18 the most significant pieces of evidence in the record, and

19 adequately indicated the basis for its decision. See Wei

20 Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006) (holding

21 that where the BIA “has given reasoned consideration to the

22 petition, and made adequate findings,” it need not

23 “expressly parse or refute on the record each individual

24 argument or piece of evidence”) (internal quotation marks
4

1 and citations omitted).

2 To the extent Lin urges the Court to remand her case to

3 the BIA to address her July 2007 motion to remand, that

4 argument is not properly before us. The proper mechanism

5 for such an argument would have been a petition for review

6 of the BIA’s July 2008 order, a step Lin failed to take. 

7 See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89,

8 90 (2d Cir. 2001) (providing that where an alien timely

9 petitions for review from the denial of a motion to reopen,

10 but not from the underlying affirmance of another decision,

11 this Court may review only the denial of the motion). 

12 For the foregoing reasons, the petition for review is

13 DENIED. As we have completed our review, any stay of

14 removal that the Court previously granted in this petition

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

16 this petition is DISMISSED as moot. Any pending request for

17 oral argument in this petition is DENIED in accordance with

18 Federal Rule of Appellate Procedure 34(a)(2), and Second

19 Circuit Local Rule 34(b).

20 FOR THE COURT: 

21 Catherine O’Hagan Wolfe, Clerk

22

23

24 By:___________________________