Filed: May 25, 2012
Latest Update: Feb. 12, 2020
Summary: 11-3070-ag Lin v. Holder BIA A073 676 558 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
Summary: 11-3070-ag Lin v. Holder BIA A073 676 558 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 “SUMM..
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11-3070-ag
Lin v. Holder
BIA
A073 676 558
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 25th day of May, two thousand twelve.
5
6 PRESENT:
7 REENA RAGGI,
8 RICHARD C. WESLEY,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 CHENG YONG LIN,
14 Petitioner,
15
16 v. 11-3070-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Michael Brown, Law Offices of
24 Michael Brown, New York, NY.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Linda S. Wernery, Assistant
28 Director; Thankful T. Vanderstar,
29 Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DENIED.
5 Petitioner Cheng Yong Lin, a native and citizen of the
6 People’s Republic of China, seeks review of a July 14, 2011
7 decision of the BIA denying his motion to reopen his
8 deportation proceedings. In re Cheng Yong Lin, No. A073 676
9 558 (B.I.A. July 14, 2011). We assume the parties’
10 familiarity with the underlying facts and procedural history
11 in this case.
12 We review the BIA’s denial of a motion to reopen for
13 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
14 (2d Cir. 2006). An alien seeking to reopen proceedings is
15 required to file a motion to reopen no later than 90 days
16 after the date on which the final administrative decision
17 was rendered. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
18 § 1003.2(c)(2). There is no dispute that Lin’s motion to
19 reopen, filed in September 2010, was untimely because the
20 BIA issued a final order of removal in November 1999.
21 Lin contends, however, that he established a material
22 change in conditions in China excusing the untimeliness of
23 his motion to reopen because he now faces a greater risk of
2
1 persecution as a result of his pro-democracy activities in
2 the United States. See 8 U.S.C. § 1229a(c)(7)(C)(ii). We
3 conclude that the BIA’s denial of Lin’s motion to reopen as
4 untimely was not an abuse of discretion.
5 As the BIA determined, Lin’s pro-democracy activities
6 in the United States constitute self-induced changes in
7 personal circumstances, which are insufficient to excuse the
8 untimeliness of his motion. See Wei Guang Wang v. BIA, 437
9 F.3d 270, 273-74 (2d Cir. 2006). The BIA also reasonably
10 concluded that the Chinese government’s awareness of Lin’s
11 pro-democracy activities in the United States, as
12 established by his father’s letter and the Changle City Hang
13 Cheng Jie Dao Yang Yu Village Committee Notice, does not
14 constitute a material change in conditions in China because
15 Lin’s original asylum claim was also based on the Chinese
16 government’s awareness of his pro-democracy activities. See
17 8 C.F.R. § 1003.2(c)(3)(ii); In re S-Y-G-, 24 I. & N. Dec.
18 247, 253 (B.I.A. 2007).
19 Lin’s contention that the BIA failed to assess the
20 materiality of his country conditions evidence is not
21 supported by the record. The BIA found that Lin was not
22 similarly situated to the democracy activists described in
3
1 his media reports because his conduct occurred in the United
2 States rather than China. Moreover, because the BIA
3 reasonably determined that Lin’s father’s letter and the
4 Changle City Hang Cheng Jie Dao Yang Yu Village Committee
5 Notice did not establish any change in conditions in China,
6 the BIA did not abuse its discretion by failing to assess
7 the materiality of this evidence. See INS v. Bagamasbad,
8 429 U.S. 24, 25 (1976).
9 The BIA also did not abuse its discretion in affording
10 diminished weight to Lin’s father’s letter and the Changle
11 City Hang Cheng Jie Dao Yang Yu Village Committee Notice.
12 While Lin argues that the BIA improperly discounted this
13 evidence due to a lack of authentication, the weight
14 afforded to an applicant’s evidence in immigration
15 proceedings lies largely within the discretion of the
16 agency. See Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d
17 315, 342 (2d Cir. 2006). Even assuming that Lin is correct,
18 remand of these proceedings would be futile, and thus
19 inappropriate, because the BIA reasonably concluded that
20 Lin’s father’s letter and the Changle City Hang Cheng Jie
21 Dao Yang Yu Village Committee Notice did not establish a
22 change in country conditions. See
id. at 339.
4
1 Lastly, Lin’s argument that the BIA engaged in
2 impermissible fact-finding is misplaced. We have recognized
3 that the BIA will engage in fact-finding when considering
4 relevant evidence of country conditions in evaluating a
5 motion to reopen. See Jian Hui Shao v. Mukasey,
546 F.3d
6 138, 169 (2d Cir. 2008).
7 For the foregoing reasons, the petition for review is
8 DENIED. As we have completed our review, any stay of
9 removal that the Court previously granted in this petition
10 is VACATED, and any pending motion for a stay of removal in
11 this petition is DISMISSED as moot. Any pending request for
12 oral argument in this petition is DENIED in accordance with
13 Federal Rule of Appellate Procedure 34(a)(2) and Second
14 Circuit Local Rule 34.1(b).
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
18
5
