Cheng Liang Lin v. Holder

09-3885-ag Lin v. Holder BIA A073 134 426 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 23 rd day of September, two thousand ten. 5 6 PRESENT: 7 REENA RAGGI, 8 RICHARD C. WESLEY, 9 GERARD E. LYNCH, 10 Circuit Judges. 11 _______________________________________ 12 13 CHENG LIANG LIN, a.k.a. ZHI YONG WANG, 14 Petitioner, 15 16 v. 09-3885-ag 17 NAC 18 19 ERIC H. HOLDER, JR., U.S. ATTORNEY 20 GENERAL, 21 Respondent. 22 _______________________________________ 23 24 FOR PETITIONER: Gary J. Yerman, New York, New York. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General, Mary Jane Candaux, 28 Assistant Director, Edward E. 29 Wiggers, Attorney, Office of 30 Immigration Litigation, Civil 31 Division, United States Department 1 of Justice, Washington, D.C. 2 UPON DUE CONSIDERATION of this petition for review of a 3 decision of the Board of Immigration Appeals (“BIA”), it is 4 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for 5 review is DENIED. 6 Petitioner Cheng Liang Lin, a native and citizen of the 7 People’s Republic of China, seeks review of an August 27, 8 2009, order of the BIA denying his motion to reopen his 9 removal proceedings. In re Cheng Liang Lin, No. A073 134 10 426 (B.I.A. Aug. 27, 2009). We assume the parties’ 11 familiarity with the underlying facts and procedural history 12 of the case. 13 We review the BIA’s denial of a motion to reopen for 14 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 15 (2d Cir. 2006). An alien who has been ordered removed may 16 file one motion to reopen, but must do so within 90 days of 17 the final administrative decision. 8 U.S.C. § 1229a(c)(7). 18 Here, the BIA properly denied Lin’s motion to reopen as 19 untimely and number-barred because he filed it almost eight 20 years after his April 2001 final order of removal and it was 21 the second such motion he had filed. See id.; 8 C.F.R. 22 § 1003.2(c)(2). 23 The 90-day filing deadline and numerical limitation may 2 1 be excused if the alien can establish “changed country 2 conditions arising in the country of nationality.” 8 U.S.C. 3 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). The BIA 4 reasonably concluded, however, that Lin had shown only that 5 his personal circumstances had changed. See Wang v. BIA, 6 437 F.3d 270, 274 (2d Cir. 2006) (noting that “apparent 7 gaming of the system in an effort to avoid [removal] is not 8 tolerated by the existing regulatory scheme”); see also Yuen 9 Jin v. Mukasey, 538 F.3d 143, 151-56 (2d Cir. 2008). 10 To the extent Lin bases his motion to reopen on his 11 original asylum claim – his general practice of Christianity 12 – Lin failed to point to evidence demonstrating a material 13 change in China’s policies toward Christians since the time 14 of the merits hearing. The BIA, citing to Matter of S-Y-G-, 15 24 I. & N. Dec. 247 (BIA 2007), also did not abuse its 16 discretion in concluding that Lin failed to establish his 17 eligibility for relief in light of his failure to rebut the 18 IJ’s underlying adverse credibility determination. See Kaur 19 v. BIA, 413 F.3d 232, 234 (2d Cir. 2005) (per curiam) 20 (finding that the BIA did not abuse its discretion in 21 denying a motion to reopen where the evidence submitted with 22 that motion related to the same claim the agency found not 3 1 credible in the underlying proceeding); see also Qin Wen 2 Zheng v. Gonzales, 500 F.3d 143, 147 (2d Cir. 2007) (relying 3 on the doctrine falsus in uno, falsus in omnibus to conclude 4 that the agency may decline to credit documentary evidence 5 submitted with a motion to reopen by an alien who was found 6 not credible in the underlying proceeding). Thus, 7 substantial evidence supports the BIA’s conclusion that Lin 8 failed to establish changed country conditions in China. 9 See 8 C.F.R. § 1003.2(c)(2); (c)(3)(ii); see also Shao v. 10 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). 11 Furthermore, a reasonable fact-finder would not be 12 compelled to conclude that the BIA ignored any material 13 evidence that Lin submitted. Although the agency has an 14 obligation to consider all evidence relevant to an 15 applicant’s claim, it need not “expressly parse or refute on 16 the record each individual argument or piece of evidence 17 offered by the petitioner.” Shao, 546 F.3d at 169 (internal 18 quotation marks omitted). Here, given the BIA’s references 19 to the documentation submitted with the motion to reopen, 20 there is no basis in the record to suggest that the BIA 21 failed to consider the evidence. See Xiao Ji Chen v. U.S. 22 Dep’t of Justice, 471 F.3d 315, 336 n.17 (2d Cir. 2006). 4 1 For the foregoing reasons, the petition for review is 2 DENIED. As we have completed our review, any stay of 3 removal that the Court previously granted in this petition 4 is VACATED, and any pending motion for a stay of removal in 5 this petition is DISMISSED as moot. Any pending request for 6 oral argument in this petition is DENIED in accordance with 7 Federal Rule of Appellate Procedure 34(a)(2), and Second 8 Circuit Local Rule 34.1(b). 9 10 FOR THE COURT: 11 Catherine O’Hagan Wolfe, Clerk 5