09 -2247 -ag

Lin v. Holder BIA A077 007 747 

### UNITE D STATES COURT OF AP PEALS FOR T HE SE COND CIRCU IT 

# SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMAR Y 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 1 0 procedural history in this case. 1 1 We review the BIA’s denial of a motion to reopen for 1 2 abuse of discretion. See Ali v. Gonzales , 448 F.3d 515, 517 1 3 (2d Cir. 2006). An alien may only file one motion to reopen 1 4 and must do so within 90 days of the final administrative 1 5 decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). 1 6 Lin’s second motion to reopen was indisputably untimely, as 1 7 it was filed more than six years after the BIA issued a 1 8 final order in her case. However, there is no time or 1 9 numerical limitation if the alien establishes materially 2 0 “changed country conditions arising in the country of 2 1 nationality.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also8 2 2 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 1 0 making after being ordered to leave the United States”). 1 1 The BIA also did not abuse its discretion in concluding that 1 2 the documentary evidence Lin submitted did not meaningfully 1 3 demonstrate that conditions in China have changed since the 1 4 time of her first hearing. See Jian Hui Shao v. Mukasey , 1 5 546 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 1 7 that the weight afforded to the evidence lies largely within 1 8 the agency’s discretion). 1 9 Furthermore, contrary to Lin’s argument, the record 2 0 does not compellingly suggest that the BIA failed to 2 1 consider any material evidence. See id. at 337 n.17 2 2 (presuming that the agency “has taken into account all of 2 3 the evidence before [it], unless the record compellingly4 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 1 0 successive asylum application. See Yuen Jin v. Mukasey , 538 1 1 F.3d 143, 152 (2d Cir. 2008) (holding that a properly filed 1 2 motion to reopen is a prerequisite to the filing of a new 1 3 asylum application when the petitioner is under a final 1 4 removal order).

For the foregoing reasons, the petition for review is 15 1 6 DENIED. As we have completed our review, any stay of 1 7 removal that the Court previously granted in this petition 1 8 is VACATED, and any pending motion for a stay of removal in 1 9 this petition is DISMISSED as moot. Any pending request for 2 0 oral argument in this petition is DENIED in accordance with 2 1 Federal Rule of Appellate Procedure 34(a)(2), and Second 2 2 Circuit Local Rule 34.1(b). 2 3 FOR THE COURT: 2 4 Catherine O’Hagan Wolfe, Clerk 25