Filed: Sep. 23, 2010
Latest Update: Feb. 21, 2020
Summary: 09-3885-ag Lin v. Holder BIA A073 134 426 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 “SUM
Summary: 09-3885-ag Lin v. Holder BIA A073 134 426 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 “SUMM..
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09-3885-ag
Lin v. Holder
BIA
A073 134 426
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 23 rd day of September, two thousand ten.
5
6 PRESENT:
7 REENA RAGGI,
8 RICHARD C. WESLEY,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _______________________________________
12
13 CHENG LIANG LIN, a.k.a. ZHI YONG WANG,
14 Petitioner,
15
16 v. 09-3885-ag
17 NAC
18
19 ERIC H. HOLDER, JR., U.S. ATTORNEY
20 GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Gary J. Yerman, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General, Mary Jane Candaux,
28 Assistant Director, Edward E.
29 Wiggers, Attorney, Office of
30 Immigration Litigation, Civil
31 Division, United States Department
1 of Justice, Washington, D.C.
2 UPON DUE CONSIDERATION of this petition for review of a
3 decision of the Board of Immigration Appeals (“BIA”), it is
4 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
5 review is DENIED.
6 Petitioner Cheng Liang Lin, a native and citizen of the
7 People’s Republic of China, seeks review of an August 27,
8 2009, order of the BIA denying his motion to reopen his
9 removal proceedings. In re Cheng Liang Lin, No. A073 134
10 426 (B.I.A. Aug. 27, 2009). We assume the parties’
11 familiarity with the underlying facts and procedural history
12 of the case.
13 We review the BIA’s denial of a motion to reopen for
14 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
15 (2d Cir. 2006). An alien who has been ordered removed may
16 file one motion to reopen, but must do so within 90 days of
17 the final administrative decision. 8 U.S.C. § 1229a(c)(7).
18 Here, the BIA properly denied Lin’s motion to reopen as
19 untimely and number-barred because he filed it almost eight
20 years after his April 2001 final order of removal and it was
21 the second such motion he had filed. See id.; 8 C.F.R.
22 § 1003.2(c)(2).
23 The 90-day filing deadline and numerical limitation may
2
1 be excused if the alien can establish “changed country
2 conditions arising in the country of nationality.” 8 U.S.C.
3 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). The BIA
4 reasonably concluded, however, that Lin had shown only that
5 his personal circumstances had changed. See Wang v. BIA,
6 437 F.3d 270, 274 (2d Cir. 2006) (noting that “apparent
7 gaming of the system in an effort to avoid [removal] is not
8 tolerated by the existing regulatory scheme”); see also Yuen
9 Jin v. Mukasey,
538 F.3d 143, 151-56 (2d Cir. 2008).
10 To the extent Lin bases his motion to reopen on his
11 original asylum claim – his general practice of Christianity
12 – Lin failed to point to evidence demonstrating a material
13 change in China’s policies toward Christians since the time
14 of the merits hearing. The BIA, citing to Matter of S-Y-G-,
15 24 I. & N. Dec. 247 (BIA 2007), also did not abuse its
16 discretion in concluding that Lin failed to establish his
17 eligibility for relief in light of his failure to rebut the
18 IJ’s underlying adverse credibility determination. See Kaur
19 v. BIA,
413 F.3d 232, 234 (2d Cir. 2005) (per curiam)
20 (finding that the BIA did not abuse its discretion in
21 denying a motion to reopen where the evidence submitted with
22 that motion related to the same claim the agency found not
3
1 credible in the underlying proceeding); see also Qin Wen
2 Zheng v. Gonzales, 500 F.3d 143, 147 (2d Cir. 2007) (relying
3 on the doctrine falsus in uno, falsus in omnibus to conclude
4 that the agency may decline to credit documentary evidence
5 submitted with a motion to reopen by an alien who was found
6 not credible in the underlying proceeding). Thus,
7 substantial evidence supports the BIA’s conclusion that Lin
8 failed to establish changed country conditions in China.
9 See 8 C.F.R. § 1003.2(c)(2); (c)(3)(ii); see also Shao v.
10 Mukasey,
546 F.3d 138, 169 (2d Cir. 2008).
11 Furthermore, a reasonable fact-finder would not be
12 compelled to conclude that the BIA ignored any material
13 evidence that Lin submitted. Although the agency has an
14 obligation to consider all evidence relevant to an
15 applicant’s claim, it need not “expressly parse or refute on
16 the record each individual argument or piece of evidence
17 offered by the petitioner.”
Shao, 546 F.3d at 169 (internal
18 quotation marks omitted). Here, given the BIA’s references
19 to the documentation submitted with the motion to reopen,
20 there is no basis in the record to suggest that the BIA
21 failed to consider the evidence. See Xiao Ji Chen v. U.S.
22 Dep’t of Justice,
471 F.3d 315, 336 n.17 (2d Cir. 2006).
4
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
5
