2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-6-2014

ChunLong Lin v. Attorney General United States

Precedential or Non-Precedential: Non-Precedential

Docket No. 14-1263

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 14-1263

___________

CHUNLONG LIN, a/k/a Chung Rong Lin, a/k/a Chungpong Lin

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A099-670-042)

Immigration Judge: Honorable Susan G. Roy

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 1, 2014

Before: FISHER, VANASKIE and ALDISERT, Circuit Judges

(Opinion filed: August 6, 2014)

___________

OPINION

___________

PER CURIAM

Chun Rong Lin1petitions for review of the Board of Immigration Appeals’ denial 

of his motion to reopen. For the reasons that follow, we will deny the petition for review.

 

1

Petitioner has stated that his name was previously misspelled in documents related to 

his case and that this is his preferred spelling. 
2

I.

Lin, a citizen of China, entered the United States in 2006. Shortly thereafter, he 

was served with a notice of appeal charging him as removable pursuant to 8 U.S.C. 

§ 1182(a)(6)(A) as an alien present in the United States without being admitted or 

paroled. At his immigration hearing, Lin conceded his removability as charged, but 

sought asylum, withholding of removal, and relief under the Convention Against Torture 

on the basis of China’s family planning policy and his fear of being forcibly sterilized 

should he return to China. After the Immigration Judge (“IJ”) determined that Lin had 

not credibly testified as to the number of forced abortions and sterilization attempts that 

he and his wife had experienced, she entered an order of removal against Lin on February 

4, 2009. 

Lin appealed to the Board of Immigration Appeals (“the Board”) arguing, among 

other issues, that the inconsistencies in his testimony were due to memory impairment

following a head injury. The Board reviewed the inconsistencies contained in the record 

and compared Lin’s asylum applications with his testimony on direct and cross 

examination, and found no clear error in the IJ’s adverse credibility determination. The 

Board then stated that Lin had not provided any evidence to support his claim of memory 

loss. The Board also noted that, even had Lin’s testimony been credible, “he would not 

be able to establish asylum eligibility based on his wife’s forced abortion and 

sterilization.” Accordingly, the Board dismissed Lin’s appeal on December 11, 2009. 
3

More than three years later, Lin filed a motion to reopen with the Board. He 

sought to present evidence to support his claim that he suffered from a cognitive 

disability. The Board first found that Lin’s motion to reopen was untimely, as it had not 

been filed within 90 days of the Board’s December 11, 2009 order. The Board also found 

that Lin could not demonstrate that his evidence of cognitive disability was new or 

previously unavailable because the documents he sought to submit were from 2001, 

2002, and 2004 (i.e. before his removal hearing). Further, Lin had not argued that the

documents were previously unavailable. Finally, the Board found that no exceptional 

circumstances existed warranting the exercise of its sua sponte discretion to reopen 

proceedings. The Board therefore denied Lin’s motion. Lin, pro se, filed a timely 

petition for review.

II.

We have jurisdiction under 8 U.S.C. § 1252, and we review denials of motions to 

reopen under a deferential abuse of discretion standard.

2

See Sevoian v. Ashcroft,

290 F.3d 166, 170, 171 (3d Cir. 2002). “Discretionary decisions of the [Board] will not 

be disturbed unless they are found to be ‘arbitrary, irrational or contrary to law.’” Tipu v. 

I.N.S., 20 F.3d 580, 582 (3d Cir. 1994). In general, motions to reopen must be filed 

within 90 days from the date “on which the final administrative decision was rendered in 

the proceeding sought to be reopened.” See 8 C.F.R. § 1003.2(c)(2); see also 8 U.S.C. 

 

2 We lack jurisdiction to review the portion of the Board’s decision that denied sua sponte 

reopening. See Pllumi v. Att’y Gen. of the U.S., 642 F.3d 155, 159 (3d Cir. 2011).
4

§ 1229a(c)(7)(C). Lin did not dispute that his motion to reopen was filed more than 90 

days after the agency’s final decision. Rather, he argued that it took him three years to 

obtain Chinese medical records documenting his cognitive impairments, and that he filed 

the motion to reopen soon after he received them. Nevertheless, Lin did not establish a 

basis for equitably tolling the time to file a motion to reopen.3 The Board thus did not act 

irrationally, arbitrarily, or contrary to law in denying his motion. See Tipu, 20 F.3d at 

582. 

Accordingly, we will deny the petition for review.

 

3 While changed country conditions may serve as a basis for tolling the 90-day time 

period, see Pllumi, 642 F.3d at 161, Lin has not argued the existence of changed country 

conditions. Ineffective assistance of counsel can also serve as a basis for equitably 

tolling the time to file a motion to reopen if substantiated and accompanied by a showing 

of due diligence, see Mahmood v. Gonzales, 427 F.3d 248, 252 (3d Cir. 2005), but Lin 

has not made such a claim.