09-1355-ag

Lin v. Holder

BIA

A073 164 640

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 Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of

New York, on the 9 day of March, two thousand ten. th

PRESENT:

ROBERT A. KATZMANN,

PETER W. HALL,

GERARD E. LYNCH,

 Circuit Judges. 

_______________________________________

XIAN LIN,

Petitioner, 

 v. 09-1355-ag

NAC

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent.

______________________________________

FOR PETITIONER: Nathan Weill, New York, N.Y.

FOR RESPONDENT: Tony West, Assistant Attorney

General, Greg D. Mack, Senior

Litigation Counsel, Wendy BennerLeon, Trial Attorney, Office of

Immigration Litigation, Civil

Division, United States Department

of Justice, Washington, DC
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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.

Petitioner Xian Lin, a native and citizen of the

People’s Republic of China, seeks review of the March 13,

2009 order of the BIA denying his motion to reopen. In re

Xian Lin, No. A 073 164 640 (B.I.A. Mar. 13, 2009). We

assume the parties’ familiarity with the underlying facts

and procedural history of the case.

The BIA did not abuse its discretion in denying Lin’s

untimely and number-barred motion to reopen. See Ali v.

Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). The regulations

provide that “a party may file only one motion to reopen

deportation or exclusion proceedings . . . and that motion

must be filed no later than 90 days after the date on which

the final administrative decision was rendered in the

proceeding sought to be reopened, or on or before September

30, 1996, whichever is later.” 8 C.F.R. § 1003.2(c)(2). 

Lin’s October 2008 motion was indisputably untimely and

number-barred because he filed it more than seven years

after the BIA’s April 2001 order of deportation, and it was

the second such motion he had filed. However, the time and
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numerical limitations may be equitably tolled to accommodate

claims of ineffective assistance of counsel. See Cekic v.

INS, 435 F.3d 167, 170 (2d Cir. 2006). Additionally, the

time limitations do not apply if the alien can establish

materially “changed circumstances arising in the country of

nationality.” 8 C.F.R. § 1003.2(c)(3)(ii). 

I. Ineffective Assistance 

The BIA did not abuse its discretion in declining to

equitably toll the filing deadline for Lin’s motion to

reopen because, as it found, he failed to demonstrate that

he was prejudiced by the actions of his prior attorney or

the immigration service that assisted him in filing his visa

petition. See Matter of Lozada, 19 I. & N. Dec. 637, 639

(BIA 1988); see also Romero v. INS, 399 F.3d 109, 112 (2d

Cir. 2005).

While Lin argues that he received ineffective

assistance because his prior attorney did not timely file

his first motion to reopen, as the BIA noted, Lin never

established that his prior attorney or the immigration

service was retained to do so. See Lozada, 19 I. & N. Dec.

at 639; see also Romero, 399 F.3d at 112 (noting that an

alien must establish that “his counsel’s performance was so

ineffective as to have impinged upon the fundamental
4

fairness of the hearing in violation of the [F]ifth

[A]mendment due process clause. To show fundamental

unfairness, an alien must allege facts sufficient to show .

. . that he was prejudiced by his counsel’s performance.”). 

In his affidavit, Lin failed to describe the scope of his

agreement with his prior attorney and the immigration

service. See Lozada, 19 I. & N. Dec. at 639. Moreover, we

agree with the BIA that the record demonstrates that, even

if Lin did seek their assistance in filing a motion to

reopen, he did so at a time when the motion would already

have been untimely. Accordingly, the BIA did not abuse its

discretion in finding that Lin failed to show the requisite

prejudice. 

II. Changed Country Conditions

In addition, the BIA did not abuse its discretion in

denying Lin’s motion to reopen based on his fear of

sterilization on account of the birth of his two Americanborn children. See Jian Hui Shao v. Mukasey, 546 F.3d 138,

169 (2d Cir. 2008). The BIA reasonably found that the

evidence Lin submitted was unauthenticated and thus

insufficient to demonstrate changed country conditions in

China. Contrary to Lin’s argument that in In re S-Y-G-, 24

I. & N. Dec. 247 (BIA 2007), the BIA “makes no mention of
5

any requirement that evidence attached to a motion to reopen

must be ‘authenticated[,]’” the BIA stated in that decision

that in order to succeed on a motion to reopen, the alien

must “make an effort to demonstrate the authenticity of

[the] evidence submitted[,]” id. at 251 n.2. Moreover,

while Lin argues that the BIA erred in relying solely on the

regulations to refuse to credit the documents from YingQian

Village, it relied on his failure to meet his burden, which,

as the BIA indicated, was “much heavier” because he “ha[d]

already been found deportable.” See INS v. Abudu, 485 U.S.

94, 110 (1988); see also Qin Wen Zheng v. Gonzales, 500 F.3d

143, 148 n.6 (2d Cir. 2007) (noting that “the context of

[an] immigration proceeding [and, thus, the burden placed on

an applicant is] crucially different” depending on whether

the applicant seeks to reopen based on changed country

conditions or challenges the denial of his application for

asylum). Therefore, the BIA reasonably declined to assign

probative weight to the unauthenticated evidence that Lin

submitted in support of his motion to reopen. See Qin Wen

Zheng, 500 F.3d at 148 n.6; Xiao Xing Ni v. Gonzales, 494

F.3d 260, 270 (2d Cir. 2007) (“[N]othing is easier than to

submit to an appellate court for the first time documents

that, ‘if authentic,’ would ‘appear to be official
6

statements’ of the Chinese government. If not these

documents or those documents, some others would do.”

(internal citation omitted)). Because Lin concedes that the

more generalized evidence he submitted did not show

widespread changes in the enforcement of China’s family

planning policy, his challenge to the BIA’s denial of his

motion fails. See Jian Hui Shao, 546 F.3d at 169. 

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, the pending motion

for a stay of removal in this petition is DISMISSED as moot. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk