10-2004-ag

Lin v. Holder

BIA

A073 037 871

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

New York, on the 16th 4 day of February, two thousand eleven.

5 PRESENT:

6 ROGER J. MINER,

7 BARRINGTON D. PARKER,

8 PETER W. HALL,

9 Circuit Judges. 

10 _____________________________________

11

12 CHAO XIONG LIN,

13 Petitioner, 

14 v. 10-2004-ag

15 NAC

16 ERIC H. HOLDER, JR., UNITED STATES

17 ATTORNEY GENERAL,

18 Respondent.

19 _____________________________________

20

21 FOR PETITIONER: Peter S. Gordon, Forest Hills, N.Y.

22 FOR RESPONDENT: Tony West, Assistant Attorney

23 General; David V. Bernal, Assistant

24 Director; Lauren E. Fascett, Trial

25 Attorney, Office of Immigration

26 Litigation, Civil Division, United

27 States Department of Justice,

28 Washington, D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

2 decision of the Board of Immigration Appeals (“BIA”), it is

3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for

4 review is DENIED.

5 Chao Xiong Lin, a native and citizen of the People’s

6 Republic of China, seeks review of an April 23, 2010

7 decision of the BIA denying his motion to reopen. In re

8 Chao Xiong Lin, No. A073 037 871 (B.I.A. Apr. 23, 2010). We

9 assume the parties’ familiarity with the underlying facts

10 and procedural history of this case.

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

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

13 Cir. 2006). We review for substantial evidence the BIA’s

14 evaluation of country conditions evidence submitted with a

15 motion to reopen. Jian Hui Shao v. Mukasey, 546 F.3d 138,

16 169 (2d Cir. 2008).

17 It is beyond dispute that Lin’s motion to reopen was

18 untimely, as it was filed more than six years after the

19 agency’s order of removal became final. See 8 C.F.R.

20 § 1003.2(c)(2). However, this time limitation does not

21 apply to a motion to reopen asylum proceedings that is

22 “based on changed circumstances arising in the country of
3

1 nationality or in the country to which deportation has been

2 ordered, if such evidence is material and was not available

3 and could not have been discovered or presented at the

4 previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). Here, Lin

5 argues that he did in fact satisfy this exception and that

6 the BIA failed to adequately consider the evidence he

7 submitted in support of his motion.

8 Contrary to Lin’s argument, there is no indication that

9 the BIA ignored any evidence he submitted. See Xiao Ji Chen

10 v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir.

11 2006) (presuming that the agency “has taken into account all

12 of the evidence before [it], unless the record compellingly

13 suggests otherwise”). In fact, the BIA explicitly referred

14 to Lin’s evidence in its decision. 

15 As for the finding on country conditions, the BIA

16 recognized that the mistreatment of Falun Gong practitioners

17 in China had commenced in 1999 and that there was also

18 “substantial repression before and after the 2008 Olympics”

19 in Beijing. However, the BIA reasonably found that Lin’s

20 motion to reopen was not based on any change in the

21 treatment of Falun Gong practitioners in China but was

22 instead based on his own practice of Falun Gong, which did
4

1 not begin until 2008. It is well-settled that changed

2 personal circumstances are distinguishable from changed

3 country conditions. See Wei Guang Wang v. BIA, 437 F.3d

4 270, 273-274 (2d Cir. 2006) (“The law is clear that a

5 petitioner must show changed country conditions in order to

6 exceed the 90-day filing requirement for seeking to reopen

7 removal proceedings. . . . A self-induced change in personal

8 circumstances cannot suffice.” (internal citation omitted));

9 Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130

10 (2d Cir. 2005) (per curiam) (holding that a change in

11 personal circumstances does not qualify as “changed

12 circumstances” so as to invoke the exception provided by 8

13 C.F.R. § 1003.2(c)(3)(ii)). As Lin asserted that he did not

14 begin practicing Falun Gong until after conditions worsened

15 for Falun Gong practitioners around the time of the 2008

16 Beijing Olympics, the BIA did not err in finding that Lin

17 had failed to demonstrate changed country conditions as

18 required to overcome the time limitation on motions to

19 reopen. See 8 C.F.R. § 1003.2(c)(3)(ii)).

20 For the foregoing reasons, the petition for review is

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

22 removal that the Court previously granted in this petition
5

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

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

3 oral argument in this petition is DENIED in accordance with

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

5 Circuit Local Rule 34.1(b).

6 FOR THE COURT: 

7 Catherine O’Hagan Wolfe, Clerk