21-6491

Lin v. Garland

BIA

A087 916 040

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.

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 2nd day of April, two thousand twentyfour. 

PRESENT: 

ROBERT D. SACK,

RICHARD J. SULLIVAN,

EUNICE C. LEE,

Circuit Judges. 

_____________________________________ 

LAN YING LIN, 

 Petitioner, 

v. 21-6491 

 NAC 

MERRICK B. GARLAND, UNITED 

STATES ATTORNEY GENERAL, 

 Respondent. 

_____________________________________ 
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FOR PETITIONER: Margaret W. Wong, Cleveland, OH. 

FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant 

Attorney General; Russell J. E. Verby, Senior 

Litigation Counsel; John D. Williams, Senior 

Trial Attorney, Office of Immigration 

Litigation, United States Department of 

Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board of 

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 

DECREED that the petition for review is DENIED. 

Petitioner Lan Ying Lin, a native and citizen of the People’s Republic of 

China, seeks review of an August 3, 2021 decision of the BIA denying her motion 

to reopen her removal proceedings. In re Lan Ying Lin, No. A 087 916 040 (B.I.A. 

Aug. 3, 2021). We assume the parties’ familiarity with the underlying facts and 

procedural history. 

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

its findings regarding country conditions for substantial evidence. See Jian Hui 

Shao v. Mukasey, 546 F.3d 138, 168–69 (2d Cir. 2008). A motion to reopen 

ordinarily must be filed within 90 days of a final order of removal. See 8 U.S.C. 

§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). It is undisputed that Lin did not file her 
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motion until 2018, five years after the BIA affirmed her removal order. 

The 90-day time limit does not apply, however, if the movant seeks to 

reopen to apply for asylum “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). In considering evidence of changed country conditions, 

the agency must “compare the evidence of country conditions submitted with the 

motion to those that existed at the time of the merits hearing below.” Tanusantoso 

v. Barr, 962 F.3d 694, 698 (2d Cir. 2020) (quoting Matter of S-Y-G-, 24 I. & N. Dec. 

247, 253 (BIA 2007)). “The BIA has broad discretion in how it conducts this 

review,” id., but it abuses its discretion if it fails to address material evidence or 

“provides no rational explanation” and produces a decision “devoid of any 

reasoning, or contain[ing] only summary or conclusory statements,” Qin Wen 

Zheng v. Gonzales, 500 F.3d 143, 146 (2d Cir. 2007) (quoting Alrefae v. Chertoff, 471 

F.3d 353, 357 (2d Cir. 2006)). “[W]e presume that [the agency] has taken into 
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account all of the evidence before [it], unless the record compellingly suggests 

otherwise.” Xiao Ji Chen v. U.S. Dep’t of Just., 471 F.3d 315, 336 n.17 (2d Cir. 2006). 

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

substantial evidence supports its conclusion that Lin failed to demonstrate a 

material change in conditions for Christians in China since her 2011 hearing. 

Although the 2011 U.S. State Department International Religious Freedom (“IRF”) 

Report for China states that “[t]he government’s respect for and protection of the 

right to religious freedom deteriorated,” Certified Admin. Record at 212, the IRF 

reports for 2009, 2011, and 2017 described similar conditions. The 2011 and 2017 

reports state that China’s constitution provides for freedom of religion but that the 

government restricts and controls its practice. The 2009 report provides that, 

“[i]n some areas[,] security authorities used threats, demolition of unregistered 

property, extortion, interrogation, detention, physical attacks, and torture to 

harass leaders of unauthorized groups and their followers.” Id. at 721. The 2011 

report states that activities were restricted and the government “harassed, 

detained, arrested, or sentenced to prison” religious adherents. Id. at 216. The 

2017 report states that the government “physically abused, detained, arrested, 
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tortured, sentenced to prison, or harassed adherents of both registered and 

unregistered religious groups.” Id. at 196. China has been designated as a 

Country of Particular Concern under the International Religious Freedom Act 

since 1999. On this record, the BIA reasonably concluded that Lin did not show 

a material change in country conditions.

Her remaining arguments fail. Although China’s 2018 regulations 

expanded authority to control religious practice to more levels of government, 

reports and news articles stated that the regulations have simply formalized 

existing restrictions and might not be enforced. Moreover, the record

demonstrates that treatment of unregistered churches varies geographically, with 

few incidents reported in Lin’s home province of Fujian. See Jian Liang v. Garland, 

10 F.4th 106, 117 (2d Cir. 2021) (concluding that petitioner failed to meet his burden 

of proof because he produced no evidence of persecution of Christians in his home 

province of Fujian). Finally, Lin’s evidence that her brother died in 2013 while 

fleeing a church raid does not compel a conclusion that conditions had changed, 

see Jian Hui Shao, 546 F.3d at 153, 165–66 (upholding BIA’s determination that 

isolated reports of persecution were insufficient to meet petitioner’s burden), nor 
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does it rebut the underlying adverse credibility determination regarding Lin’s 

own alleged persecution and practice of Christianity, see Kaur v. BIA, 413 F.3d 232, 

234 (2d Cir. 2005) (upholding BIA’s conclusion that evidence is not material for 

purposes of a motion to reopen if it does not rebut an underlying adverse 

credibility determination). 

In sum, the BIA did not abuse its discretion in denying Lin’s motion to 

reopen because substantial evidence supports the BIA’s conclusion that she failed 

to show a material change in country conditions. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 

8 C.F.R. § 1003.2(c)(3)(ii). 

For the foregoing reasons, the petition for review is DENIED. All pending 

motions and applications are DENIED and stays VACATED.

FOR THE COURT: 

Catherine O’Hagan Wolfe, 

Clerk of Court