Filed: Mar. 17, 2014
Latest Update: Mar. 02, 2020
Summary: 13-395 Lin v. Holder BIA A077 957 393 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
Summary: 13-395 Lin v. Holder BIA A077 957 393 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 ..
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13-395
Lin v. Holder
BIA
A077 957 393
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 17th day of March, two thousand fourteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 SHAO LIN LIN, A.K.A. TRACY HUM,
14 Petitioner,
15
16 v. 13-395
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: Stuart F. Delery, Assistant Attorney
26 General; Erica B. Miles, Senior
27 Litigation Counsel; Jesse Lloyd
28 Busen, Attorney, Civil Division,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 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 Shao Lin Lin, a native and citizen of China,
6 seeks review of a January 14, 2013 decision of the BIA
7 denying her motion to reopen. In Shao Lin Lin, a.k.a. Tracy
8 Hum, No. A077 957 393 (B.I.A. Jan. 14, 2013). We assume the
9 parties’ familiarity with the underlying facts and
10 procedural history in this case.
11 We review the BIA's denial of a motion to reopen for
12 abuse of discretion, mindful that such motions are
13 "disfavored," Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.
14 2006) (citing INS v. Doherty,
502 U.S. 314, 322-23 (1992)),
15 and the agency's factual findings regarding country
16 conditions under the substantial evidence standard, Jian Hui
17 Shao v. Mukasey,
546 F.3d 138, 169 (2d Cir. 2008).
18 Aliens seeking to reopen proceedings may move to reopen
19 no later than 90 days after the final administrative
20 decision was rendered. 8 U.S.C. 1229a(c)(7)(C)(i); 8 C.F.R.
21 1003.2(c)(2). However, this time limitation does not apply
22 if the motion is "based on changed country conditions
2
1 arising in the country of nationality or the country to
2 which removal has been ordered, if such evidence is material
3 and was not available and would not have been discovered or
4 presented at the previous proceedings." 8 U.S.C.
5 1229a(c)(7)(C)(ii); 8 C.F.R. 1003.2(c)(3)(ii).
6 It is undisputed that Lin’s motion to reopen was
7 untimely; she filed it nearly eight years after the agency
8 rendered its final decision. The BIA determined that she
9 failed to carry her heavy burden of demonstrating material
10 changed country conditions that would excuse her delay. See
11 Matter of S-Y-G-, 24 I. & N. Dec. 247, 251, 258 (BIA 2007));
12 8 U.S.C. 1229a(c)(7)(C)(ii). The BIA "compare[d] the
13 evidence of country conditions submitted with the motion to
14 those that existed at the time of the merits hearing below,"
15 and concluded that mistreatment of Christian groups in China
16 represents not a change in conditions, but rather a
17 longstanding and ongoing problem. Matter of S-Y-G-, 24 I. &
18 N. Dec. at 253. This was no abuse of discretion. See,
19 e.g., Matter of S-Y-G-, 24 I. & N. Dec. at 257 ("Change that
20 is incremental or incidental does not meet the regulatory
21 requirements for late motions of this type.").
22
3
1 Similarly, the agency was within its discretion to
2 conclude that Lin's motion was predicated on a change in her
3 personal circumstances – converting to Christianity – rather
4 than a change in China. As this Court has admonished, "[a]
5 self-induced change in personal circumstances cannot
6 suffice" to excuse an untimely motion to reopen. Wei Guang
7 Wang v. BIA, 437 F.3d 270, 274 (2d Cir. 2006).
8 The agency was entitled to give little weight to a
9 letter from Lin’s friend in China because it was not
10 notarized and was prepared specifically for Lin’s motion.
11 See, e.g., Matter of H-L-H- & Z-Y- Z-, 25 I. & N. Dec. 209,
12 215 (BIA 2010) (giving diminished evidentiary weight to
13 letters from interested witnesses not subject to
14 cross-examination), rev'd on other grounds by Hui Lin Huang
15 v. Holder,
677 F.3d 130 (2d Cir. 2012). In any event, the
16 letter said nothing about changed country conditions.
17 Matter of S-Y-G-, 24 I. & N. Dec. at 253.
18 For the foregoing reasons, the petition for review is
19 DENIED. As we have completed our review, any stay of
20 removal that the Court previously granted in this petition
21 is VACATED, and any pending motion for a stay of removal in
22 this petition is DISMISSED as moot. Any pending request for
23 oral argument in this petition is DENIED in accordance with
4
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
6
5
