09-5187-ag
    Lin v. Holder
                                                                                  BIA
                                                                          A078 198 985
                         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
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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 4th day of March, two thousand eleven.
    PRESENT:
             JOHN M. WALKER, JR.,
             REENA RAGGI,
             GERARD E. LYNCH,
                   Circuit Judges.
    _______________________________________

    XIN FENG LIN,
             Petitioner,

                    v.                                     09-5187-ag
                                                           NAC

    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:               Thomas V. Massucci, New York, New
                                  York.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Jennifer L. Lightbody,
                                  Assistant Director; Todd J. Cochran,
                                  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

decision of the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

review is DENIED.

    Xin Feng Lin, a native and citizen of the People’s

Republic of China, seeks review of a November 19, 2009 order

of the BIA denying his motion to reopen his removal

proceedings.   In re Xin Feng Lin, No. A078 198 985 (B.I.A.

Nov. 19, 2009).     We assume the parties’ familiarity with the

underlying facts and procedural history of the case.

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

abuse of discretion.     See Ali v. Gonzales, 

, 517

(2d Cir. 2006).     An alien who has been ordered removed may

file one motion to reopen, but must do so within 90 days of

the final administrative decision.     8 U.S.C. § 1229a(c)(7).

Here, the BIA did not abuse its discretion in denying Lin’s

motion to reopen as untimely and number-barred, as it was

his second motion to reopen and was filed more than six

years after his December 2002 final order of removal.     See

id.; 8 C.F.R. § 1003.2(c)(2).

    The BIA reasonably concluded that Lin failed to

establish changed country conditions such that the time and


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number limits on his motion to reopen should be excused.

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

§ 1003.2(c)(3)(ii).   We find no abuse of discretion in its

determination that Lin failed to point to evidence in the

record establishing that the Chinese government’s current

treatment of pro-democracy activists differed from their

treatment at the time of his merits hearing.   See In re

S-Y-G-, 24 I. & N. Dec 247, 253 (B.I.A. 2007) (holding that,

“[i]n determining whether evidence accompanying a motion to

reopen demonstrates a material change in country conditions

that would justify reopening, we compare the evidence of

country conditions submitted with the motion to those that

existed at the time of the merits hearing below”).

Moreover, there was no abuse of discretion in the Board’s

failure to recognize a change in country conditions with

regard to the Chinese government’s treatment of individuals

engaged in pro-democracy activities outside of China.

Because Lin’s pro-democracy activities in the United States

were a change in personal circumstances, the BIA did not err

in considering only whether there was a change in country

conditions with regard to the Chinese government’s treatment

of pro-democracy activists in general.   See 8 C.F.R.


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§ 1003.2(c)(3)(ii); Yuen Jin v. Mukasey, 

, 155

(2d Cir. 2008) (noting that aliens who have been ordered

removed are not permitted “to disregard [those] orders and

remain in the United States long enough to change their

personal circumstances (e.g., by having children or

practicing a persecuted religion) and initiate new

proceedings via a new asylum application”).   Therefore,

because substantial evidence supports the BIA’s

determination that Lin failed to establish changed country

conditions, see 8 C.F.R. § 1003.2(c)(2), (c)(3)(ii); see

also Jian Hui Shao v. Mukasey, 

, 169 (2d Cir.

2008) (holding that when BIA considers relevant evidence of

country conditions in evaluating motion to reopen, this

Court reviews BIA’s factual findings under substantial

evidence standard), the BIA did not abuse its discretion by

denying Lin’s motion.

    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, any stay of

removal that the Court previously granted in this petition

is VACATED, and any pending motion for a stay of removal in

this petition is DISMISSED as moot. Any pending request for

oral argument in this petition is DENIED in accordance with


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Federal Rule of Appellate Procedure 34(a)(2), and Second

Circuit Local Rule 34.1(b).

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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