09-5209-ag
    Lin v. Holder
                                                                                  BIA
                                                                          A070 170 185
                     UNITED STATES COURT OF APPEALS
                         FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
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         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 31 st day of January, two thousand eleven.

    PRESENT:
             RALPH K. WINTER,
             BARRINGTON D. PARKER,
             REENA RAGGI,
                    Circuit Judges.
    _____________________________________

    WEN XIN LIN,
             Petitioner,

                    v.                                     09-5209-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               James Costo, Brooklyn, New York.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Shelley R. Goad, Assistant
                                  Director; Julia J. Tyler, Trial
                                  Attorney, Office of Immigration
                                  Litigation, 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.

     Wen Xin 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. In re Wen Xin

Lin, No. A070 170 185 (B.I.A. Nov. 19, 2009).    We assume the

parties’ familiarity with the underlying facts and

procedural history of this case.

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

for abuse of discretion, mindful that such motions are

disfavored.   Ali v. Gonzales, 

, 517 (2d Cir.

2006).   An alien may file only one motion to reopen within

ninety days of the final administrative order of removal.      8

U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).   There is no

filing deadline, however, if the alien establishes

materially “changed country conditions arising in the

country of nationality.”   8 U.S.C. § 1229a(c)(7)(C)(ii); see

also 8 C.F.R. § 1003.2(c)(3)(ii).   Here, the BIA did not

abuse its discretion in denying Lin’s motion as untimely

because it was filed more than two years after his May 24,

2006 final order of removal.   See 8 U.S.C.

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§ 1229a(c)(7)(C)(ii).

     Lin maintains that the filing deadline does not apply

here because he adduced evidence demonstrating he would be

persecuted based on his political participation in the China

Democracy Party (“CDP”) and publication of pro-democracy

articles.      We are not persuaded.   Contrary to Lin’s

assertions, the BIA did not abuse its discretion in relying,

in part, on the immigration judge’s prior adverse

credibility determination in concluding that the newly

submitted evidence was unreliable.       See Siewe v. Gonzales,

, 170 (2d Cir. 2007); Qin Wen Zheng v. Gonzales,

, 146-47 (2d Cir. 2007) (concluding that BIA

reasonably declined to credit documentary evidence submitted

with motion to reopen where alien previously found not

credible). 1

     In any event, even without the adverse credibility



     1
      Paul v. Gonzales, 

(2d Cir. 2006), on
which Lin relies, is not to the contrary. There, we
determined that the BIA abused its discretion in rejecting
newly submitted country condition reports based on a prior
adverse credibility finding regarding past persecution when
the petitioner was found credible regarding the factual
predicate for his claim of future persecution. 

154. In contrast, the IJ here did not make any positive
credibility findings, and the reliability of Lin’s affidavit
and mostly unauthenticated documentation depends on his
credibility.

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finding, the BIA reasonably determined that Lin failed to

present material evidence of changed country conditions

because his claims lacked specificity and corroboration.

See 8 U.S.C. § 1229a(c)(7)(C)(ii); INS v. Abudu, 

, 104-05 (1988) (noting that BIA may deny motion to reopen

if threshold evidentiary requirement not met).    The two

submitted articles do not show a change of conditions

relevant to Lin’s claim when neither one mentions the CDP. 2

Moreover, Lin presented no corroborating evidence suggesting

that he published any articles or that China was aware of

his purported publications.   See Qin Wen Zheng v. 

.   Thus, the BIA did not abuse its discretion

in denying Lin’s motion based on his failure to demonstrate

changed country conditions excusing the untimely filing of

his motion to reopen. See 

.

    In addition, the record does not support Lin’s

assertion that the BIA failed to consider his new evidence.

To the contrary, the BIA explicitly mentioned Lin’s

affidavit, CDP membership card, photographs, two news



     2
      Although Lin cites to country conditions evidence
from 2005 and 2007, because these documents do not appear in
the record we do not consider them. See 8 U.S.C.
§ 1252(b)(4)(A).

                              4
articles, and proof related to Lin’s conversion to

Christianity, and found this evidence neither reliable nor

probative of changed country conditions.    See Xiao Ji Chen

v. U.S. Dep’t of Justice, 

, 338 n.17 (2d Cir.

2006) (presuming “that [the agency] has taken into account

all of the evidence before [it], unless the record

compellingly suggests otherwise”); 

   (explaining

that weight afforded to asylum applicant’s evidence lies

largely within discretion of agency).

    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

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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