Filed: Aug. 21, 2012
Latest Update: Mar. 26, 2017
Summary: 11-3701 BIA Lin v. Holder A088 552 407 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 “SUMMAR
Summary: 11-3701 BIA Lin v. Holder A088 552 407 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..
More
11-3701 BIA
Lin v. Holder A088 552 407
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 21st day of August, two thousand twelve.
5
6 PRESENT:
7 JON O. NEWMAN,
8 ROBERT A. KATZMANN,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11
12 _____________________________________
13
14 YING LIN,
15 Petitioner,
16
17 v. 11-3701-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Gary J. Yerman, New York, New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; James E. Grimes,
28 Senior Litigation Counsel; Gerald M.
29 Alexander, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1
2 UPON DUE CONSIDERATION of this petition for review of a
3 Board of Immigration Appeals (“BIA”) decision, it is hereby
4 ORDERED, ADJUDGED, AND DECREED, that the petition for review
5 is DENIED.
6 Petitioner Ying Lin, a native and citizen of China,
7 seeks review of an August 25, 2011, decision of the BIA
8 denying his motion to reopen his removal proceedings. In re
9 Ying Lin, No. A088 552 407 (B.I.A. Aug. 25, 2011). We
10 assume the parties’ familiarity with the underlying facts
11 and procedural history 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 January 2011, was untimely because the BIA
20 issued a final order of removal in April 2010. See 8 U.S.C.
21 § 1229a(c)(7)(C)(I); 8 C.F.R. § 1003.2(c)(2).
22 Lin contends, however, that he established changed
23 circumstances on the basis of the Chinese government’s
2
1 intensified repression of Catholics following his merits
2 hearing in June 2008. See 8 U.S.C. § 1229a(c)(7)(C)(ii)
3 (providing an exception to the 90-day deadline where a
4 motion is based on a material change in circumstances in the
5 country of removal); see also 8 C.F.R. § 1003.2(c)(3)(ii);
6 In re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007) (“In
7 determining whether evidence accompanying a motion to reopen
8 demonstrates a material change in country conditions that
9 would justify reopening, [the BIA] compares the evidence of
10 country conditions submitted with the motion to those that
11 existed at the time of the merits hearing below.”). We
12 conclude that the BIA’s denial of Lin’s motion to reopen as
13 untimely was not an abuse of discretion.
14 In considering Lin’s country conditions evidence, the
15 BIA noted that the Department of State’s 2009 Country Report
16 indicated that the Chinese government continued its
17 harassment of members of Catholic house churches and that
18 the 2009 China Aid Report – the only evidence reflecting an
19 increase in religious repression – did not report an
20 intensification of religious repression in Lin’s home
21 province of Fujian. While Lin takes issue with the BIA’s
22 finding that his evidence reflected a continuation rather
3
1 than a material increase in the Chinese government’s level
2 of religious repression, the task of resolving conflicts in
3 the record evidence lies “largely within the discretion of
4 the agency.” See Jian Hui Shao v. Mukasey, 546 F.3d 138,
5 171 (2d Cir. 2008). Where, as here, the agency’s inference
6 “is tethered to the evidentiary record, we will accord
7 deference to the finding.” See Siewe v. Gonzales,
480 F.3d
8 160, 168-69 (2d Cir. 2007) (“[S]upport for a contrary
9 inference – even one more plausible or more natural – does
10 not suggest error”).
11 Lin’s contention that the BIA erred in discounting his
12 evidence of conditions for Chinese Catholics outside of his
13 home province of Fujian is misplaced, as Lin bore the burden
14 of supporting his motion with “material” evidence. See 8
15 C.F.R. § 1003.2(c)(1); see also 8 U.S.C. § 1229a(c)(7)(B);
16 INS v. Abudu,
485 U.S. 94, 104-05 (1988). As the BIA noted,
17 the Department of State’s 2009 International Religious
18 Freedom Report indicated that the Chinese government’s
19 repression of underground churches varied depending on local
20 conditions. Given this evidence of variation, the BIA
21 reasonably determined that the China Aid Report’s anecdotal
22 accounts of religious repression outside Lin’s home province
4
1 of Fujian did not demonstrate a material change in
2 circumstances. See Jian Hui Shao, 546 F.3d at 149, 158-59
3 (stating that it is the applicant’s burden to show a
4 well-founded fear of persecution in his locality in China in
5 the context of family planning policies); see also Xiao Ji
6 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.
7 2006) (noting that the weight afforded to the applicant’s
8 evidence lies largely within the discretion of the agency).
9 Further, the BIA did not err in affording Lin’s
10 cousin’s letter diminished evidentiary weight. See Xiao Ji
11 Chen, 471 F.3d at 342. As the BIA noted, the letter was
12 unsworn, appeared to be created for the purpose of
13 litigation, and was from an interested witness not subject
14 to cross-examination. Under these circumstances, the BIA
15 did not abuse its discretion in affording the letter
16 diminished evidentiary weight. See In re H-L-H- & Z-Y-Z-,
17 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (affording diminished
18 evidentiary weight to unsworn letters from the alien’s
19 friends and family because they were from interested
20 witnesses not subject to cross-examination), remanded on
21 other grounds by Hui Lin Huang v. Holder,
677 F.3d 130 (2d
22 Cir. 2012).
23 Because the BIA did not abuse its discretion in denying
24 Lin’s motion as untimely, we do not address his prima facie
5
1 eligibility for asylum, withholding of removal, and relief
2 under the Convention Against Torture. See INS v.
3 Bagamasbad, 429 U.S. 24, 25 (1976)(per curiam).
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of
6 removal that the Court previously granted in this petition
7 is VACATED, and any pending motion for a stay of removal in
8 this petition is DISMISSED as moot. Any pending request for
9 oral argument in this petition is DENIED in accordance with
10 Federal Rule of Appellate Procedure 34(a)(2), and Second
11 Circuit Local Rule 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
15
16
6
