07-4869-ag (L); 08-0902-ag (Con)
Lin v. Holder
BIA
A077 650 636
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 18 th day of May, two thousand ten.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 PETER W. HALL,
9 DENNY CHIN,
10 Circuit Judges.
11 _________________________________________
12 XUE YU LIN,
13 Petitioner,
14
15 v. 07-4869-ag (L);
16 08-0902-ag (Con)
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL, 1
20 Respondent.
21 _________________________________________
22 FOR PETITIONER: Alexander K. Yu, New York, NY.
23
24 FOR RESPONDENT: Tony West, Assistant Attorney
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
1 General, Civil Division, Ernesto H.
2 Molina, Jr., Assistant Director,
3 Gladys M. Steffens Guzmán, Trial
4 Attorney, Office of Immigration
5 Litigation, United States Department
6 of Justice, Washington, D.C.
7
8 UPON DUE CONSIDERATION of these consolidated petitions
9 for review of two Board of Immigration Appeals (“BIA”)
10 decisions, it is hereby ORDERED, ADJUDGED, AND DECREED, that
11 the petitions for review are DENIED.
12 Xue Yu Lin, a native and citizen of the People’s
13 Republic of China, seeks review of an October 3, 2007, order
14 of the BIA denying her motion to reopen, In re Xue Yu Lin,
15 No. A077 650 636 (B.I.A. Oct. 3, 2007), and a January 24,
16 2008, order of the BIA denying her motion to reconsider, In
17 re Xue Yu Lin, No. A077 650 636 (B.I.A. Jan. 24, 2008). We
18 assume the parties’ familiarity with the underlying facts
19 and procedural history in this case.
20 We review the agency’s denial of a motion to reopen or
21 reconsider for abuse of discretion. See Kaur v. BIA, 413
22 F.3d 232, 233 (2d Cir. 2005) (per curiam); Jin Ming Liu v.
23 Gonzales, 439 F.3d 109, 111 (2d Cir. 2006).
24 I. Motion to Reopen, 07-4869-ag (L)
25 The agency did not abuse its discretion in denying
26 Lin’s motion to reopen as untimely and number barred because
2
1 it was her third motion to reopen and the BIA entered a
2 final order of removal in June 2003. See 8 C.F.R.
3 § 1003.2(c)(2). Furthermore, the BIA did not abuse its
4 discretion in declining to equitably toll the time period
5 for filing Lin’s motion to reopen because she failed to
6 demonstrate that she exercised due diligence in pursuing her
7 ineffective assistance of counsel claim. See Cekic v. INS,
8 435 F.3d 167, 170 (2d Cir. 2006). The BIA reasonably relied
9 in part on Lin’s failure to take any actions in her case for
10 the almost two and a half years between the denial of her
11 second motion to reopen and the filing of her third motion
12 to reopen. See Rashid v. Mukasey, 533 F.3d 127, 131 (2d Cir.
13 2008). Moreover, the BIA did not err in finding that Lin
14 knew of or should have discovered the alleged ineffective
15 assistance of counsel after she filed her appeal to the BIA
16 or when she filed her two previous motions to reopen or
17 reconsider. See Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d
18 Cir. 2007).
19 In addition, the BIA did not abuse its discretion in
20 finding that Lin failed to establish changed country
21 conditions excepting her motion to reopen from the time and
22 numerical limitations. See Wei Guang Wang v. BIA, 437 F.3d
3
1 270, 274 (2d Cir. 2006); Yuen Jin v. Mukasey, 538 F.3d 143,
2 155 (2d Cir. 2008). Contrary to Lin’s argument, a
3 reasonable fact-finder would not be compelled to conclude
4 that the BIA failed to consider the evidence she submitted.
5 See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 336
6 n.17 (2d Cir. 2006). Moreover, the BIA reasonably declined
7 to credit that evidence given the IJ’s underlying adverse
8 credibility determination. See Qin Wen Zheng v. Gonzales,
9 500 F.3d 143, 147 (2d Cir. 2007).
10 Accordingly, the BIA did not abuse its discretion in
11 denying Lin’s untimely and number-barred motion to reopen.
12 See 8 U.S.C. § 1229a(c)(7)(C)(ii); Kaur, 413 F.3d at 233;
13 Cekic, 435 F.3d at 170.
14 II. Motion to Reconsider, 08-0902-ag (Con)
15 Nor did the BIA abuse its discretion in denying Lin’s
16 motion to reconsider. Jin Ming Liu, 439 F.3d at 111. In
17 its decision, the BIA revisited its analysis of the evidence
18 Lin had submitted with her motion to reopen and reaffirmed
19 its conclusion that such evidence failed to establish
20 changed country conditions. See Wei Guang Wang, 437 F.3d at
21 274. Furthermore, contrary to Lin’s argument, the BIA
22 properly found no error in its reliance on the IJ’s prior
23 adverse credibility finding to discredit the evidence Lin
4
1 submitted. See Zheng, 500 F.3d at 147.
2 For the foregoing reasons, the consolidated petitions
3 for review are DENIED. As we have completed our review, any
4 stay of removal that the Court previously granted is
5 VACATED, and any pending motion for a stay of removal is
6 DISMISSED as moot. Any pending request for oral argument is
7 DENIED in accordance with Federal Rule of Appellate
8 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
12
5