09 -23 10 -ag

Lin v. Holder BIA A077 657 975 

### UNITED STATES COURT OF AP PEALS FOR THE SE COND CIRCU IT 

# SUM MARY ORDER

RULI N G S 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 April, two thousand ten. st 5 6 PRESENT: 7 BARRINGTON D. PARKER, 8 RICHARD C. WESLEY, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges . 11

_________________________________________ 12 13 XIA LIN, 14 Petitioner , 15 16 v. 09-2310-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; Cindy S. Ferrier, Senior 27 Litigation Counsel; P. Michael 28 Truman, Attorney, Civil Division, 29 Office of Immigration Litigation, 30 United States Department of Justice, 31 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 Petitioner Xia Lin, a native and citizen of the 6 People’s Republic of China, seeks review of the May 6, 2009, 7 order of the BIA, which denied her motion to reopen. In re 8 Xia Lin , No. A077 657 975 (B.I.A. May 6, 2009). We assume 9 the parties’ familiarity with the underlying facts and 1 0 procedural history of the case. 1 1 We review the BIA’s denial of a motion to reopen for 1 2 abuse of discretion. See Kaur v. BIA , 413 F.3d 232, 233 (2d 1 3 Cir. 2005) (per curiam). Here, the BIA did not abuse its 1 4 discretion in denying Lin’s motion to reopen as untimely 1 5 because she filed it almost six years after the BIA issued 1 6 its final order of removal. See 8 C.F.R. § 1003.2(c)(2). 1 7 Additionally, the BIA did not err in denying Lin’s motion to 1 8 reopen because she failed to submit a new asylum application 1 9 setting forth her new claim based on her alleged involvement 2 0 with the Chinese Democracy Party (“CDP”). See 8 C.F.R. 2 1 § 1003.2(c)(1); Bi Feng Liu v. Holder , 560 F.3d 485, 490-91 2 2 (2d Cir. 2009) (finding that because petitioner “did notLin does not challenge the BIA’s rejection of her 1 ineffective assistance of counsel claim. 3 1 append an application for asylum to his motion to reopen as 2 mandated . . . [the] motion to reopen is, at a minimum, 3 procedurally defaulted”). Lin’s failure to file an asylum 4 application with her motion meant that the motion was 5 procedurally defaulted. See Bi Feng Liu , 560 F.3d at 490- 6 91. That default is dispositive of her petition for review. 7 In any event, we agree with the BIA that Lin’s alleged 8 involvement with the China Democracy Party was not a changed 9 country condition in China. See Wei Guang Wang v. BIA , 437 1 1 0 F.3d 270, 273-274 (2d Cir. 2006); Li Yong Zheng v. U.S. 11 Dep’t of Justice , 416 F.3d 129, 130-31 (2d Cir. 2005).

For the foregoing reasons, the petition for review is 12 1 3 DENIED. As we have completed our review, any stay of 1 4 removal that the Court previously granted in this petition 1 5 is VACATED, and any pending motion for a stay of removal in 1 6 this petition is DISMISSED as moot. Any pending request for 1 7 oral argument in these petitions is DENIED in accordance 1 8 with Federal Rule of Appellate Procedure 34(a)(2), and 1 9 Second Circuit Local Rule 34.1(b). 2 0 FOR THE COURT: 2 1 Catherine O’Hagan Wolfe, Clerk 22 23