12-3197

Lin v. Lynch

BIA

A099 026 744

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Thurgood Marshall United

States Courthouse, 40 Foley Square, in the City of New York,

on the 16th day of March, two thousand sixteen.

PRESENT:

 ROSEMARY S. POOLER,

DEBRA ANN LIVINGSTON,

DENNY CHIN,

Circuit Judges. 

_____________________________________

GUANG LI LIN,

Petitioner, 

 v. 12-3197

NAC 

LORETTA E. LYNCH, UNITED STATES

ATTORNEY GENERAL,

Respondent.1

_____________________________________

FOR PETITIONER: Richard Tarzia, Belle Mead, N.J.

1 Pursuant to Federal Rule of Appellate Procedure

43(c)(2), Attorney General Loretta E. Lynch is

automatically substituted for former Attorney General

Eric H. Holder, Jr.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant

Attorney General; Linda S. Wernery,

Assistant Director; Theodore C.

Hirt, Senior Litigation Counsel,

Office of Immigration Litigation,

United States Department of Justice,

Washington, D.C.

UPON DUE CONSIDERATION of this petition for review of a

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

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is DENIED.

Guang Li Lin, a native and citizen of the People’s

Republic of China, seeks review of a July 19, 2012 decision

of the BIA denying his motion to reopen. In re Guang Li

Lin, No. A099 026 744 (B.I.A. July 19, 2012). We assume the

parties’ familiarity with the underlying facts and

procedural history of this case. 

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

abuse of discretion, mindful of the Supreme Court’s

admonition that such motions are “disfavored.” Ali v.

Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.

Doherty, 502 U.S. 314, 322-23 (1992)). Where the BIA has

considered relevant evidence of country conditions in

evaluating a motion to reopen, we review the BIA’s factual

findings for substantial evidence. See Jian Hui Shao v.

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

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An alien must file a motion to reopen within 90 days

after the date on which the agency’s final administrative

decision was rendered. 8 U.S.C. § 1229a(c)(7)(C)(i);

8 C.F.R. § 1003.2(c)(2). Lin’s motion was undisputably

untimely because it was filed more than one year after the

agency’s final order of removal. See 8 U.S.C.

§ 1229a(c)(7)(C)(i). However, there is no time limitation

for filing a motion to reopen if it “is based on changed

country conditions arising in the country of nationality or

the country to which removal has been ordered, if such

evidence is material and was not available and would not

have been discovered or presented at the previous

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

8 C.F.R. § 1003.2(c)(3)(ii). We find that the BIA did not

abuse its discretion in denying Lin’s untimely motion to

reopen.

Lin argues that the BIA erred in concluding that he

failed to demonstrate material changed country conditions

sufficient to excuse the time limitation for filing his

motion to reopen. In support of his motion, Lin submitted a

letter from a neighbor in China, who claimed that he had

been persecuted on account of his Christian faith. However,

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the BIA reasonably determined that this letter was entitled

to little weight given the underlying adverse credibility

determination made by the immigration judge following Lin’s

asylum hearing. See Qin Wen Zheng v. Gonzales, 500 F.3d

143, 146–49 (2d Cir. 2007). Contrary to Lin’s contention,

the generalized country conditions evidence did not indicate

conditions in China had worsened such that individuals

similarly situated to Lin faced persecution. See 8 U.S.C. §

1229a(c)(7)(C)(ii); see also Jian Hui Shao, 546 F.3d at 169. 

Moreover, given the BIA’s explicit discussion of the

evidence submitted, we are not persuaded by Lin’s assertion

that the BIA failed to consider his evidence. See Xiao Ji

Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 336 n.17 (2d

Cir. 2006) (presuming that the agency “has taken into

account all of the evidence before [it], unless the record

compellingly suggests otherwise”). Accordingly, substantial

evidence supports the BIA's conclusion that Lin did not

establish changed country conditions which would excuse the

time limit for filing his motion to reopen. See 8 U.S.C. §

1229a(c)(7)(C).

Because the BIA did not abuse its discretion in denying

Lin’s untimely motion, we decline to consider Lin’s prima

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facie eligibility for asylum and withholding of removal, as

the BIA did not reach this issue. See INS v. Bagamasbad,

429 U.S. 24, 25 (1976).

For the foregoing reasons, the petition for review is

DENIED.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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