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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-3620

___________

QIU YING LIN,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A077-998-387)

Immigration Judge: Honorable Charles M. Honeyman

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 8, 2012

Before: SMITH, HARDIMAN AND STAPLETON, Circuit Judges

(Opinion filed: March 13, 2012)

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OPINION

___________

PER CURIAM

Qiu Ying Lin, a citizen of the People’s Republic of China, sought admission to the 

United States in March 2002 without presenting or possessing valid documents, and was 

charged with removability on this basis shortly thereafter. She conceded the charge and 
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requested asylum, withholding, and protection under the Convention Against Torture 

(“CAT”) based on her fear of persecution under China’s population control policies. 

The Immigration Judge (“IJ”) denied her applications for relief from removal, 

holding that Lin had not met her burdens of proof (he also treated the portion of her claim 

based on alleged past persecution as withdrawn). In April 2006, the Board of 

Immigration Appeals (“BIA”) affirmed the IJ’s decision and dismissed Lin’s appeal. Lin 

did not file a petition for review of that decision.

On October 12, 2010, Lin filed a motion to reopen the proceedings with the BIA. 

She sought reopening based on her membership and participation in the Federation for a 

Democratic China (“FDC”), a political opposition group against Chinese one-party rule. 

Lin joined the group six months before filing her motion to reopen. Since joining, she 

has participated in the group’s activities, including rallies, meetings, and distributing 

flyers. She also has donated money and published articles on the FDC’s website. With 

her motion, she included an affidavit, her articles, pictures of her activities, and other 

background materials. She also submitted a statement from a lawful permanent resident 

named Yuan Jun Tang, who stated, “I believe [Lin’s] FDC membership has been 

identified by the Chinese authorities,” and “[s]ince 2005, the Chinese government 

intensifies persecution of dissidents.” 

The BIA denied Lin’s motion, ruling that it was not filed within 90 days of the 

entry of the final order of removal and that no exception to the ordinary timing rule 

applied. Specifically, the BIA held that Lin’s participation in FDC was a change in her 

personal circumstances in this country, not a change in the country conditions in China. 
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The BIA also compared the 2003 State Department Report with the 2009 State 

Department Report. The BIA acknowledged that the 2009 State Department Report 

included a statement that China’s human rights record had worsened in some areas, but 

the BIA noted that the report did not specify in what areas it had worsened or whether it 

had worsened from the previous year. The BIA concluded that treatment of political 

dissidents, internet essayists, and journalists, remained poor, but had not worsened. The 

BIA described Yuan Jun Tang’s statement regarding country conditions as speculation 

because it described China in years after Yuan Jun Tang had left the country. The BIA 

also rejected other evidence that Lin submitted as not demonstrating worsening 

conditions. The BIA also declined to reopen the proceedings sua sponte. 

Lin submits a petition for review. We have jurisdiction pursuant to 8 U.S.C. 

' 1252(a).1 Review of the BIA=s decision to deny the motion to reopen is under a highly 

deferential abuse of discretion standard. See Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 

2004). The discretionary decision is not disturbed unless it is found to be arbitrary, 

irrational, or contrary to law. See id. 

In this case, we cannot say that the BIA abused its discretion. Most motions to 

reopen must be filed no later than 90 days after the date of the final administrative 

decision. See 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2). The time limit can be 

 

1However, to the extent that Lin also challenges the BIA’s decision to decline to exercise 

its discretion to reopen her case sua sponte, we do not have jurisdiction over the matter.

See 8 U.S.C. § 1252(a)(2)(B)(ii); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 

2003); but see Cruz v. Attorney Gen. of the United States, 452 F.3d 240, 250 (3d Cir. 

2006) (explaining that we retain jurisdiction over some issues relating to the denials of 

sua sponte relief, which are not implicated in this case). 
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suspended under certain circumstances, including in some cases of changed country 

circumstances, where the evidence of changed circumstances “is material and was not 

available and could not have been discovered or presented at the previous hearing.” See

8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003. 2(c)(3)(ii), Johnson v. Aschcroft, 286 

F.3d 696, 704 (3d Cir. 2002). 

To the extent that Lin relied on her relatively recent FDC activities as a basis for 

reopening approximately four years after the entry of her final order of removal, the BIA 

did not err in rejecting that basis as changed personal circumstances that do not meet the 

standard. Cf. Ying Liu v. Attorney Gen. of the United States, 555 F.3d 145, 148 (3d Cir.

2009). Also, there does not seem to be anything arbitrary or irrational about discounting 

the account of Chinese country conditions by a person who has been in this country 

during the relevant time period. In addition, some of the evidence offered by Lin relates 

to incidents from years ago, see, e.g., R. 111 (a newspaper article from 1998) & 114 (an 

article from 2002) or relates to incidents that occurred in China to Chinese nationals who 

were not returning from abroad, see, e.g., R. 112-13. 

The BIA also accurately noted that the 2009 State Department Report included a 

general statement that the Chinese government’s human rights record has worsened in 

some areas, State Department Report 1, but did not specify which areas. The BIA’s 

conclusion, based on a comparison of the 2009 State Department Report with the 2003 

State Department Report, that the treatment of Internet essayists and journalists remains 

poor, is supported by a comparison of the two State Department Reports. During both 

time periods, in similar numbers, journalists and Internet writers and essayists (at least 
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those working or writing in China) have been imprisoned. 

For these reasons, we cannot say that the BIA abused its discretion in concluding 

that Lin had not shown changed country conditions and denying Lin’s motion to reopen 

as untimely.2 Accordingly, we deny the petition for review. 

 

2 We also agree with the Government that Lin’s argument relating to the BIA’s failure to 

consider her CAT claim is irrelevant. Only if her motion to reopen had been granted 

would Lin have had the opportunity to again present a CAT claim.