11-3168-ag

Lin-Guo v. Holder

BIA

A098 980 945

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 25th 4 day of July, two thousand twelve.

5

6 PRESENT:

7 ROBERT D. SACK,

8 GERARD E. LYNCH,

9 SUSAN L. CARNEY,

10 Circuit Judges. 

11 _______________________________________

12

13 ZUO SHI LIN-GUO, AKA ZU SHI LIN,

14 Petitioner, 

15

16 v. 11-3168-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONER: Peter Lobel, New York, New York.

24

25 FOR RESPONDENT: Tony West, Assistant Attorney

26 General; Linda S. Wernery, Assistant

27 Director; William C. Minick,

28 Attorney, Office of Immigration

29 Litigation, United States Department

30 of Justice, 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 Zuo Shi Lin-Guo, a native and citizen of the People’s

6 Republic of China, seeks review of a July 12, 2011, decision

7 of the BIA denying his motion to reopen. In re Zuo Shi Lin8 Guo, No. A098 980 945 (B.I.A. July 12, 2011). We assume the

9 parties’ familiarity with the underlying facts and

10 procedural history of this case.

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

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

13 Cir. 2006). When, as here, the BIA considers relevant

14 evidence of country conditions in evaluating the motion to

15 reopen, we review the BIA’s factual findings under the

16 substantial evidence standard. See Jian Hui Shao v.

17 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). 

18 An alien may file only one motion to reopen and must do

19 so within 90 days of the agency’s final administrative

20 decision. 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R.

21 § 1003.2(c)(2). Although Lin-Guo’s motion was indisputably

22 untimely because it was filed more than two years after the
3

1 agency’s final order of removal, see 8 U.S.C.

2 § 1229a(c)(7)(C)(i), there is no time limitation for filing

3 a motion to reopen to apply or reapply for asylum if it is

4 “based on changed country conditions arising in the country

5 of nationality or the country to which removal has been

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

7 and would not have been discovered or presented at the

8 previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see

9 also 8 C.F.R. § 1003.2(c)(3)(ii). Here, the BIA did not

10 abuse its discretion in finding that Lin-Guo failed to

11 establish such circumstances based on his newly commenced

12 practice of Christianity in the United States. See Li Yong

13 Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d

14 Cir. 2005) (explaining that a change in “personal

15 circumstances in the United States” did not constitute a

16 change in country conditions excusing the filing deadline

17 for motions to reopen). 

18 Moreover, the BIA reasonably concluded that Lin-Guo’s

19 evidence of the persecution of Christians in China did not

20 establish a material change in country conditions since his

21 September 2006 proceedings. See 8 U.S.C.

22 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii); Matter of
4

1 S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA 2007) (noting that in

2 evaluating evidence of changed country conditions, the BIA

3 “compare[s] the evidence of country conditions submitted

4 with the motion to those that existed at the time of the

5 merits hearing below”). Indeed, the BIA, referencing the

6 U.S. State Department reports and newspaper articles in the

7 record, reasonably determined that, although some of the

8 evidence described a slight intensification of persecution

9 of Christians since 2006, the evidence nevertheless failed

10 to establish a material change in country conditions because

11 it described conditions substantially similar to those that

12 existed at the time of Lin-Guo’s 2006 hearing. 

13 See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. §

14 1003.2(c)(3)(ii); see also Matter of S-Y-G-, 24 I. & N. Dec.

15 at 257 (explaining that an “incremental or incidental”

16 change in a country’s policies does not constitute changed

17 country conditions for purposes of motions to reopen); Siewe

18 v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“where there

19 are two permissible views of the evidence, the fact finder’s

20 choice between them cannot be clearly erroneous.”). 

21 Moreover, the BIA reasonably found that Lin-Guo failed

22 to demonstrate an intensification of persecution of

23 Christians in his native Fuzhou City since his 2006 hearing,
5

1 as the country conditions evidence in the record did not

2 describe any incidents of oppression of unregistered

3 Christians occurring in Fuzhou City. See 8 C.F.R.

4 § 1003.2(c)(1); Matter of S-Y-G-, 24 I. & N. Dec. at 257. 

5 Furthermore, the BIA reasonably determined that the letter

6 written by Lin-Guo’s sister did not constitute material

7 evidence, as it was vague and lacking in detail, and did not

8 describe any change in the Chinese government’s treatment of

9 Christians since 2006. See 8 C.F.R. § 1003.2(c)(1); see

10 also Abudu, 485 U.S. at 104-05 (recognizing that a movant’s

11 failure to produce material evidence is an independent basis

12 for the denial of a motion to reopen); Xiao Ji Chen v. U.S.

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

14 that the weight afforded to the applicant’s evidence in

15 immigration proceedings lies largely within the agency’s

16 discretion). 

17 Accordingly, because substantial evidence supports the

18 BIA’s conclusion that Lin-Guo failed to establish that

19 conditions for Christians in China had materially changed

20 since his 2006 proceedings, the BIA did not abuse its

21 discretion in denying his motion to reopen as untimely. 

22 See Ali, 448 F.3d at 517; Jian Hui Shao, 546 F.3d at 169. 

23
6

1 For the foregoing reasons, the petition for review is

2 DENIED. 

3 FOR THE COURT: 

4 Catherine O’Hagan Wolfe, Clerk

5