09-2247-ag

Lin v. Holder

BIA

A077 007 747

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 21 day of July, two thousand ten. st

5

6 PRESENT:

7 JOSÉ A. CABRANES,

8 DEBRA ANN LIVINGSTON,

9 DENNY CHIN,

10 Circuit Judges.

11 _________________________________________

12

13 BI YING LIN,

14 Petitioner, 

15

16 v. 09-2247-ag

17 NAC

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _________________________________________

22 

23 FOR PETITIONER: Pro Se.

24

25 FOR RESPONDENT: Tony West, Assistant Attorney

26 General; Lyle D. Jentzer, Assistant

27 Director; Zoe J. Heller, Attorney,

28 Office of Immigration Litigation,

29 United States Department of Justice,

30 Washington, D.C.
2

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 Bi Ying Lin, a native and citizen of the People’s

6 Republic of China, seeks review of an April 30, 2009, order

7 of the BIA denying her motion to reopen. In re Bi Ying Lin,

8 No. A077 007 747 (B.I.A. April 30, 2009). We assume the

9 parties’ familiarity with the underlying facts and

10 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). An alien may only file one motion to reopen

14 and must do so within 90 days of the final administrative

15 decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). 

16 Lin’s second motion to reopen was indisputably untimely, as

17 it was filed more than six years after the BIA issued a

18 final order in her case. However, there is no time or

19 numerical limitation if the alien establishes materially

20 “changed country conditions arising in the country of

21 nationality.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8

22 C.F.R. § 1003.2(c)(3)(ii). 
3

1 The BIA did not abuse its discretion in finding that

2 the birth of Lin’s two U.S. citizen children and her

3 involvement in an underground Christian church reflected

4 changes in her personal circumstances rather than changed

5 country conditions in China. See Wei Guang Wang v. BIA, 437

6 F.3d 270, 272, 274 (2d Cir. 2006) (making clear that the

7 time and numerical limitations on motions to reopen may not

8 be suspended because of a “self-induced change in personal

9 circumstances” that is “entirely of [the applicant’s] own

10 making after being ordered to leave the United States”). 

11 The BIA also did not abuse its discretion in concluding that

12 the documentary evidence Lin submitted did not meaningfully

13 demonstrate that conditions in China have changed since the

14 time of her first hearing. See Jian Hui Shao v. Mukasey,

15 546 F.3d 138, 169-72 (2d Cir. 2008); Xiao Ji Chen v. U.S.

16 Dep’t of Justice, 471 F.3d 315,342(2d Cir. 2006) (holding

17 that the weight afforded to the evidence lies largely within

18 the agency’s discretion).

19 Furthermore, contrary to Lin’s argument, the record

20 does not compellingly suggest that the BIA failed to

21 consider any material evidence. See id. at 337 n.17

22 (presuming that the agency “has taken into account all of

23 the evidence before [it], unless the record compellingly
4

1 suggests otherwise”). Rather, the BIA properly declined to

2 credit the letters Lin submitted based on the Immigration

3 Judge’s underlying adverse credibility determination. See

4 Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-49 (2d Cir.

5 2007).

6 Moreover, because Lin failed to establish changed

7 country conditions in China sufficient to excuse the

8 untimely filing of her motion to reopen, the BIA did not

9 abuse its discretion in denying her motion to file a

10 successive asylum application. See Yuen Jin v. Mukasey, 538

11 F.3d 143, 152 (2d Cir. 2008) (holding that a properly filed

12 motion to reopen is a prerequisite to the filing of a new

13 asylum application when the petitioner is under a final

14 removal order).

15 For the foregoing reasons, the petition for review is

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

17 removal that the Court previously granted in this petition

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

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

20 oral argument in this petition is DENIED in accordance with

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

22 Circuit Local Rule 34.1(b).

23 FOR THE COURT: 

24 Catherine O’Hagan Wolfe, Clerk

25