07-5212-ag
    Lin v. Holder
                                                                                   BIA
                                                                          A 072 765 479
                          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 Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 19 th day of May, two thousand ten.

    PRESENT:
             REENA RAGGI,
             RICHARD C. WESLEY,
             PETER W. HALL,
                  Circuit Judges.
    ______________________________________

    XING LIN,
                        Petitioner,
                                                           07-5212-ag
                         v.                                NAC
    ERIC H. HOLDER, JR., * UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    ______________________________________
    FOR PETITIONER:                    Michael Brown, New York, New York.

    FOR RESPONDENT:                    Gregory G. Katsas, Assistant
                                       Attorney General, Civil Division;


                    *
               Pursuant to Federal Rule of Appellate Procedure
        43(c)(2), Attorney General Eric H. Holder, Jr., is
        automatically substituted for former Attorney General
        Michael B. Mukasey as respondent in this case.
                        Susan K. Houser, Senior Litigation
                        Counsel; John J.W. Inkeles, Trial
                        Attorney, Office of Immigration
                        Litigation, Civil Division, United
                        States Department of Justice,
                        Washington, D.C.
    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, Xing Lin, a native and citizen of the

People’s Republic of China, seeks review of an October 31,

2007 order of the BIA denying as untimely his motion to

reopen asylum proceedings resolved against him in 1995.     In

re Xing Lin, No. A 072 765 479 (B.I.A. Oct. 31, 2007).    We

assume the parties’ familiarity with the underlying facts

and procedural history of the case.

    We review the BIA’s denial of Lin’s motion to reopen

for abuse of discretion, see Ali v. Gonzales, 

,

517 (2d Cir. 2006), and we detect none on this record.

There is no dispute that Lin’s application was untimely

filed.   See 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).

Further, the BIA reasonably determined that Lin failed to

present evidence of changed country conditions sufficient to

qualify for an exception to the 90-day filing deadline.     See



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8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii);

see also Jian Hui Shao v. Mukasey, 

, 169-72 (2d

Cir. 2008) (upholding denial of motion to reopen based on

similar evidence); Wei Guang Wang v. BIA, 

, 273

(2d Cir. 2006) (endorsing BIA conclusion that birth of

children in U.S. is change in personal circumstances, not

change in country conditions).

    To the extent Lin argues that the alleged ineffective

assistance of his former attorney warranted reopening the

proceedings, the claim is without merit.   Ineffective

assistance of counsel is not a sufficient basis, on its own,

to excuse a late filing, see Cekic v. INS, 

, 170

(2d Cir. 2006), and Lin does not argue that he was entitled

to equitable tolling of the filing deadline, see Norton v.

Sam’s Club, 

, 117 (2d Cir.1998) (“Issues not

sufficiently argued in the briefs are considered waived and

normally will not be addressed on appeal.”). 1   In any event,

because Lin failed to raise the issue of equitable tolling

before the BIA, any such argument remains unexhausted.     See


       1
        As Lin admits lying about his eligibility for asylum
  – purportedly because counsel told him his request for
  relief would otherwise be denied – he can hardly
  demonstrate prejudice from the alleged ineffectiveness.
  See Rabiu v. INS, 

, 882 (2d Cir. 1994).

                              3
Lin Zhong v. U.S. Dep't of Justice, 

, 121-22,

124 (2d Cir. 2007) (holding that issue exhaustion is

mandatory, though not jurisdictional, requirement).

    For the foregoing reasons, the petition for review is

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

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


                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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