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.**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 16 th** **day of February, two thousand eleven.** 4

**PRESENT:** 5 **ROGER J. MINER,** 6 **BARRINGTON D. PARKER,** 7 **PETER W. HALL,** 8 **C**ircuit Judges**.** 9

**_____________________________________** 10 11 **CHAO XIONG LIN,** 12 Petitioner**,** 13 **v. 10-2004-ag** 14 **NAC** 15 **ERIC H. HOLDER, JR., UNITED STATES** 16 **ATTORNEY GENERAL,** 17 Respondent**.** 18

**_____________________________________** 19 20 **FOR PETITIONER: Peter S. Gordon, Forest Hills, N.Y.** 21 **FOR RESPONDENT: Tony West, Assistant Attorney** 22 **General; David V. Bernal, Assistant** 23 **Director; Lauren E. Fascett, Trial** 24 **Attorney, Office of Immigration** 25 **Litigation, Civil Division, United** 26 **States Department of Justice,** 27 **Washington, D.C.** 282 UPON DUE CONSIDERATION of this petition for review of a 1 decision of the Board of Immigration Appeals (“BIA”), it is 2 hereby ORDERED, ADJUDGED, AND DECREED that the petition for 3 review is DENIED. 4 Chao Xiong Lin, a native and citizen of the People’s 5 Republic of China, seeks review of an April 23, 2010 6 decision of the BIA denying his motion to reopen. In re 7 Chao Xiong Lin, No. A073 037 871 (B.I.A. Apr. 23, 2010). We 8 assume the parties’ familiarity with the underlying facts 9 and procedural history of this case. 10 We review the BIA’s denial of a motion to reopen for 11 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d 12 Cir. 2006). We review for substantial evidence the BIA’s 13 evaluation of country conditions evidence submitted with a 14 motion to reopen.Jian Hui Shao v. Mukasey, 546 F.3d 138, 15 169 (2d Cir. 2008). 16 It is beyond dispute that Lin’s motion to reopen was 17 untimely, as it was filed more than six years after the 18 agency’s order of removal became final. See 8 C.F.R. 19 § 1003.2(c)(2). However, this time limitation does not 20 apply to a motion to reopen asylum proceedings that is 21 “based on changed circumstances arising in the country of 223 nationality or in the country to which deportation has been 1 ordered, if such evidence is material and was not available 2 and could not have been discovered or presented at the 3 previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). Here, Lin 4 argues that he did in fact satisfy this exception and that 5 the BIA failed to adequately consider the evidence he 6 submitted in support of his motion. 7 Contrary to Lin’s argument, there is no indication that 8 the BIA ignored any evidence he submitted. See Xiao Ji Chen 9 v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir. 10 2006) (presuming that the agency “has taken into account all 11 of the evidence before [it], unless the record compellingly 12 suggests otherwise”). In fact, the BIA explicitly referred 13 to Lin’s evidence in its decision. 14 As for the finding on country conditions, the BIA 15 recognized that the mistreatment of Falun Gong practitioners 16 in China had commenced in 1999 and that there was also 17 “substantial repression before and after the 2008 Olympics” 18 in Beijing. However, the BIA reasonably found that Lin’s 19 motion to reopen was not based on any change in the 20 treatment of Falun Gong practitioners in China but was 21 instead based on his own practice of Falun Gong, which did 224 not begin until 2008. It is well-settled that changed 1 personal circumstances are distinguishable from changed 2 country conditions. See Wei Guang Wang v. BIA, 437 F.3d 3 270, 273-274 (2d Cir. 2006) (“The law is clear that a 4 petitioner must show changed country conditions in order to 5 exceed the 90-day filing requirement for seeking to reopen 6 removal proceedings. . . . A self-induced change in personal 7 circumstances cannot suffice.” (internal citation omitted)); 8 Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130 9 (2d Cir. 2005) (per curiam) (holding that a change in 10 personal circumstances does not qualify as “changed 11 circumstances” so as to invoke the exception provided by 8 12 C.F.R. § 1003.2(c)(3)(ii)). As Lin asserted that he did not 13 begin practicing Falun Gong until after conditions worsened 14 for Falun Gong practitioners around the time of the 2008 15 Beijing Olympics, the BIA did not err in finding that Lin 16 had failed to demonstrate changed country conditions as 17 required to overcome the time limitation on motions to 18

reopen. See 8 C.F.R. § 1003.2(c)(3)(ii)). 19 For the foregoing reasons, the petition for review is 20 DENIED. As we have completed our review, any stay of 21 removal that the Court previously granted in this petition 225 is VACATED, and any pending motion for a stay of removal in 1 this petition is DISMISSED as moot. Any pending request for 2 oral argument in this petition is DENIED in accordance with 3 Federal Rule of Appellate Procedure 34(a)(2), and Second 4 Circuit Local Rule 34.1(b). 5

FOR THE COURT: 6 Catherine O’Hagan Wolfe, Clerk 7