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Lin v. Holder, 10-4757 (2011)

Court: Court of Appeals for the Second Circuit Number: 10-4757 Visitors: 1
Filed: Aug. 19, 2011
Latest Update: Feb. 22, 2020
Summary: 10-4757-ag Lin v. Holder BIA A077 921 974 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
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         10-4757-ag
         Lin v. Holder
                                                                                       BIA
                                                                               A077 921 974
                          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 19th day of August, two thousand eleven.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                GERARD E. LYNCH,
 9                SUSAN L. CARNEY,
10                   Circuit Judges.
11       _______________________________________
12
13       MAN TAT LIN, AKA WEN DA LIAN,
14                Petitioner,
15
16                       v.                                     10-4757-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Gary J. Yerman, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; David V. Bernal, Assistant
27                                     Director; Lance L. Jolley, Trial
28                                     Attorney, Office of Immigration
29                                     Litigation, United States Department
30                                     of Justice, Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   review is DENIED.

 5       Man Tat Lin, a native and citizen of the People’s

 6   Republic of China, seeks review of an October 28, 2010,

 7   decision of the BIA denying his motion to reopen.      In re Man

 8   Tat Lin, aka Wen Da Lian, No. A077 921 974 (B.I.A. Oct. 28,

 9   2010).   We assume the parties’ familiarity with the

10   underlying facts 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).     When, as here, the BIA considers relevant

14   evidence of country conditions in evaluating a motion to

15   reopen, we review the BIA’s factual findings under the

16   substantial evidence standard.      See Jian Hui Shao v.

17   Mukasey, 
546 F.3d 138
, 169 (2d Cir. 2008).

18       An alien may file only one motion to reopen and must do

19   so within 90 days of the agency’s final administrative

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

21   Although Lin’s motion was indisputably untimely and number-

22   barred because it was filed more than nine years after the

23   agency’s final order of removal and because it was his

                                     2
 1   second motion, see 8 U.S.C. § 1229a(c)(7)(C)(i), there are

 2   no time or numerical limitations for filing a motion to

 3   reopen if it is “based on changed country conditions arising

 4   in the country of nationality or the country to which

 5   removal has been ordered, if such evidence is material and

 6   was not available and would not have been discovered or

 7   presented at the previous proceeding.”   8 U.S.C.

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

 9       The BIA did not abuse its discretion in finding that

10   Lin’s newly commenced practice of Christianity constituted a

11   change in his personal circumstances, rather than a change

12   in country conditions sufficient to excuse the untimely and

13   number-barred filing of his motion to reopen.   See Li Yong

14   Zheng v. U.S. Dep’t of Justice, 
416 F.3d 129
, 130-31 (2d

15   Cir. 2005) (explaining that a change in “personal

16   circumstances in the United States” did not constitute a

17   change in country conditions excusing the filing deadline

18   for motions to reopen).   Moreover, the BIA did not err in

19   finding that the country conditions evidence that Lin

20   submitted in support of his motion to reopen did not

21   demonstrate a material change in country conditions excusing

22   the untimely and number-barred filing of his motion because


                                   3
 1   it indicated that since Lin’s 2000 deportation hearing, the

 2   Chinese government had continually repressed unregistered

 3   Christian churches in certain areas.   See 8 U.S.C.

 4   § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).

 5   Furthermore, in light of evidence that the treatment of

 6   unregistered religious groups varied widely from region to

 7   region, the BIA reasonably found evidence that the Chinese

 8   government had intensified its repression of unregistered

 9   religious groups surrounding and following the 2008 Olympics

10   immaterial to Lin’s motion because that intensification

11   occurred in regions other than Lin’s home province.    Cf.

12   Jian Hui 
Shao, 546 F.3d at 142
, 149 (accepting the BIA’s

13   evidentiary framework requiring an applicant to demonstrate

14   that enforcement of the family planning policy is carried

15   out in his or her local area in a manner that would give

16   rise to a well-founded fear of persecution because of local

17   variations in the enforcement of that policy).   Accordingly,

18   because the record does not compel the conclusion that the

19   treatment of practitioners in unregistered Christian

20   churches in Lin’s home province had changed materially since

21   the time of Lin’s 2000 hearing, see 8 U.S.C.

22   § 1229a(c)(7)(C)(ii); see also Jian Hui 
Shao, 546 F.3d at 23
  169, the BIA did not abuse its discretion in denying Lin’s

                                  4
 1   motion to reopen as untimely and number-barred.    See

 2   8 U.S.C. § 1229a(c)(7); see also 8 C.F.R. § 1003.2(c)(3).

 3       For the foregoing reasons, the petition for review is

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

 5   removal that the Court previously granted in this petition

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

 7   this petition is DISMISSED as moot. Any pending request for

 8   oral argument in this petition is DENIED in accordance with

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

10   Circuit Local Rule 34.1(b).

11                                 FOR THE COURT:
12                                 Catherine O’Hagan Wolfe, Clerk
13
14
15




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Source:  CourtListener

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