Filed: Aug. 22, 2012
Latest Update: Mar. 26, 2017
Summary: 12-2 Lin v. Holder BIA A077 002 686 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 O
Summary: 12-2 Lin v. Holder BIA A077 002 686 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 OR..
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12-2
Lin v. Holder
BIA
A077 002 686
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 22nd day of August, two thousand twelve.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 GERARD E. LYNCH,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 YANG LIN LIN, AKA YAN LING LIN,
14 Petitioner,
15
16 v. 12-2
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Michael Brown, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Jennifer P.
27 Levings, Senior Litigation Counsel;
28 Jennifer R. Khouri, Trial Attorney,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Yang Lin Lin, a native and citizen of the People’s
6 Republic of China, seeks review of a December 19, 2011,
7 decision of the BIA denying her motion to reopen.
8 In re Yang Lin Lin, No. A077 002 686 (B.I.A. Dec. 19, 2011).
9 We assume the parties’ familiarity with the underlying facts
10 and procedural history of this case.
11 We review the BIA’s denial of Lin’s motion to reopen
12 for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006) (per curiam). An alien may file only one
14 motion to reopen and must do so within 90 days of the
15 agency’s final administrative decision. 8 U.S.C.
16 § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2). Although
17 Lin’s motion was indisputably untimely because it was filed
18 more than eight years after the agency’s final order of
19 removal, there is no time limitation for filing a motion to
20 reopen to apply or reapply for asylum if it is “based on
21 changed country conditions arising in the country of
22 nationality or the country to which removal has been
23 ordered, if such evidence is material and was not available
2
1 and would not have been discovered or presented at the
2 previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii);
3 see also 8 C.F.R. § 1003.2(c)(3)(ii). Here, the BIA did not
4 abuse its discretion in finding that Lin failed to establish
5 such circumstances based on her newly commenced practice of
6 Falun Gong in the United States. See Li Yong Zheng v. U.S.
7 Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir. 2005) (per
8 curiam) (explaining that a change in “personal circumstances
9 in the United States” did not constitute a change in country
10 conditions).
11 Moreover, the BIA reasonably concluded that Lin failed
12 to establish a material change in country conditions as
13 required to except her motion from the time limitation, as
14 the record evidence reflected merely a continuation of
15 conditions that existed prior to Lin’s 2000 merits hearing.
16 See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.
17 § 1003.2(c)(3)(ii); In re S-Y-G-, 24 I. & N. Dec. 247, 253
18 (BIA 2007) (noting that in evaluating evidence of changed
19 country conditions, the BIA “compare[s] the evidence of
20 country conditions submitted with the motion to those that
21 existed at the time of the merits hearing below”). Indeed,
22 the BIA reasonably found that the country conditions
23 evidence shows not that conditions for Falun Gong
3
1 practitioners in China have worsened, but that the
2 harassment has been continuous since 1999. Furthermore,
3 although Lin argues that recent uprisings in the Middle East
4 have made the Chinese government more concerned with pro-
5 democracy movements in China, she did not present any
6 evidence to support this claim. See 8 U.S.C. §
7 1229a(c)(7)(B) (indicating that the movant bears the burden
8 of supporting her motion with relevant evidence).
9 The BIA also did not abuse its discretion in denying
10 Lin’s motion to reopen for failure to establish her prima
11 facie eligibility for relief. See Jian Hui Shao v. Mukasey,
12 546 F.3d 138, 168 (2d Cir. 2008) (noting that in order to
13 establish prima facie eligibility for relief in a motion to
14 reopen, petitioner must show a “‘realistic chance’” of
15 obtaining relief by “demonstrating that the proffered new
16 evidence would likely alter the result in her case” (quoting
17 Poradisova v. Gonzales,
420 F.3d 70, 78 (2d Cir. 2005))).
18 Given Lin’s generalized assertions that she would be
19 punished or imprisoned, the BIA did not err in finding that
20 her fear of future persecution was speculative. See Jian
21 Xing Huang v. U.S. I.N.S.,
421 F.3d 125, 128-29 (2d Cir.
22 2005) (per curiam); Lecaj v. Holder,
616 F.3d 111, 117 (2d
23 Cir. 2010). In doing so, the BIA was not required to credit
4
1 Lin’s statement, her mother’s letter, or the village
2 committee notice, particularly given their lack of
3 authentication and the underlying adverse credibility
4 determination. See Xiao Ji Chen v. U.S. Dep’t of Justice,
5 471 F.3d 315, 342 (2d Cir. 2006) (holding that the weight
6 accorded to the applicant’s evidence in immigration
7 proceedings lies largely within the discretion of the
8 agency).
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, Lin’s pending
11 motion for a stay of removal in this petition is DISMISSED
12 as moot.
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
15
5
