10-4815-ag
         Lin v. Holder
                                                                                       BIA
                                                                               A098 492 043
                           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 17th day of February, two thousand twelve.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                RAYMOND J. LOHIER, JR.,
10                SUSAN L. CARNEY,
11                     Circuit Judges.
12       _______________________________________
13
14       QIAN LIN,
15                       Petitioner,
16
17                       v.                                     10-4815-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:                G. Victoria Calle, Calle &
25                                      Associates, New York, New York.
26
27       FOR RESPONDENT:                Tony West, Assistant Attorney
28                                      General; Linda S. Wernery, Assistant
29                                      Director; Theodore C. Hirt,
30                                      Attorney, Office of Immigration
 1                            Litigation, Civil Division, United
 2                            States Department of Justice,
 3                            Washington, D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

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

 7   ORDERED, ADJUDGED, AND DECREED that the petition for review

 8   is DENIED.

 9       Qian Lin, a native and citizen of China, seeks review

10   of an October 29, 2010, order of the BIA denying her motion

11   to reopen her removal proceedings.     In re Qian Lin, No. A098

12   492 043 (B.I.A. Oct. 29, 2010).    We assume the parties’

13   familiarity with the underlying facts and procedural history

14   of the case.

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

16   abuse of discretion.    Ali v. Gonzales, 

, 517 (2d

17   Cir. 2006).    The BIA did not abuse its discretion because

18   Lin’s motion was untimely as it was filed more than 90 days

19   after her final removal order.     See 8 U.S.C.

20   § 1229a(c)(7)(C)(i).    She argues that she is not bound by

21   the 90-day time limit because her motion included a

22   successive application for asylum under

23   8 U.S.C.§ 1158(a)(2)(D), and thus is not governed by

24   § 1229a(c)(7)(C)(i).    This argument is foreclosed by our



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 1   decision in Yuen Jin v. Mukasey, 

, 153-56 (2d

 2   Cir. 2008), in which we held that an alien under a final

 3   removal order cannot file a successive asylum application

 4   pursuant to 8 U.S.C. § 1158(a)(2)(D) without complying with

 5   the procedural requirements, including the timeliness

 6   requirements, governing motions to reopen.

 7       Alternatively, Lin argues that she was exempt from the

 8   time limitation as she established changed conditions in

 9   China.   See 8 U.S.C. § 1229a(c)(7)(C)(ii).   However,

10   substantial evidence supports the BIA’s conclusion that she

11   did not establish changed conditions.    As the BIA noted,

12   Lin’s membership in a pro-democracy party in the United

13   States constituted a change in her personal circumstances,

14   not a change in conditions in China.     See Wei Guang Wang v.

15   BIA, 

, 274 (2d Cir. 2006).    Moreover, while some

16   evidence in the record could be said to indicate that human

17   rights conditions in China deteriorated in 2008 and 2009,

18   the evidence also indicated that the repression of political

19   dissidents has been constant and ongoing since the time of

20   Lin’s hearing in 2006.   Accordingly, we defer to the BIA’s

21   conclusion that Lin did not establish a material change in

22   country conditions.   See Siewe v. Gonzales, 

,

23   167 (2d Cir. 2007) (“Where there are two permissible views

                                   3
 1   of the evidence, the fact finder’s choice between them

 2   cannot be clearly erroneous.” (quotation omitted)).      Thus,

 3   the BIA did not abuse its discretion in denying Lin’s motion

 4   as untimely.   See 8 U.S.C. § 1229a(c)(7)(C)(i), (ii).

 5       For the foregoing reasons, the petition for review is

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

 7   removal that the Court previously granted in this petition

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

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

10   oral argument in this petition is DENIED in accordance with

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

12   Circuit Local Rule 34.1(b).

13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe, Clerk
15
16




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