09-5209-ag
Lin v. Holder
BIA
A070 170 185
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
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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
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 31 st day of January, two thousand eleven.
PRESENT:
RALPH K. WINTER,
BARRINGTON D. PARKER,
REENA RAGGI,
Circuit Judges.
_____________________________________
WEN XIN LIN,
Petitioner,
v. 09-5209-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: James Costo, Brooklyn, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Shelley R. Goad, Assistant
Director; Julia J. Tyler, Trial
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.
Wen Xin Lin, a native and citizen of the People’s
Republic of China, seeks review of a November 19, 2009,
order of the BIA denying his motion to reopen. In re Wen Xin
Lin, No. A070 170 185 (B.I.A. Nov. 19, 2009). We assume the
parties’ familiarity with the underlying facts and
procedural history of this case.
We review the BIA’s denial of Lin’s motion to reopen
for abuse of discretion, mindful that such motions are
disfavored. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.
2006). An alien may file only one motion to reopen within
ninety days of the final administrative order of removal. 8
U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). There is no
filing deadline, however, if the alien establishes
materially “changed country conditions arising in the
country of nationality.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see
also 8 C.F.R. § 1003.2(c)(3)(ii). Here, the BIA did not
abuse its discretion in denying Lin’s motion as untimely
because it was filed more than two years after his May 24,
2006 final order of removal. See 8 U.S.C.
2
§ 1229a(c)(7)(C)(ii).
Lin maintains that the filing deadline does not apply
here because he adduced evidence demonstrating he would be
persecuted based on his political participation in the China
Democracy Party (“CDP”) and publication of pro-democracy
articles. We are not persuaded. Contrary to Lin’s
assertions, the BIA did not abuse its discretion in relying,
in part, on the immigration judge’s prior adverse
credibility determination in concluding that the newly
submitted evidence was unreliable. See Siewe v. Gonzales,
480 F.3d 160, 170 (2d Cir. 2007); Qin Wen Zheng v. Gonzales,
500 F.3d 143, 146-47 (2d Cir. 2007) (concluding that BIA
reasonably declined to credit documentary evidence submitted
with motion to reopen where alien previously found not
credible). 1
In any event, even without the adverse credibility
1
Paul v. Gonzales, 444 F.3d 148 (2d Cir. 2006), on
which Lin relies, is not to the contrary. There, we
determined that the BIA abused its discretion in rejecting
newly submitted country condition reports based on a prior
adverse credibility finding regarding past persecution when
the petitioner was found credible regarding the factual
predicate for his claim of future persecution. Id. at 150,
154. In contrast, the IJ here did not make any positive
credibility findings, and the reliability of Lin’s affidavit
and mostly unauthenticated documentation depends on his
credibility.
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finding, the BIA reasonably determined that Lin failed to
present material evidence of changed country conditions
because his claims lacked specificity and corroboration.
See 8 U.S.C. § 1229a(c)(7)(C)(ii); INS v. Abudu, 485 U.S.
94, 104-05 (1988) (noting that BIA may deny motion to reopen
if threshold evidentiary requirement not met). The two
submitted articles do not show a change of conditions
relevant to Lin’s claim when neither one mentions the CDP. 2
Moreover, Lin presented no corroborating evidence suggesting
that he published any articles or that China was aware of
his purported publications. See Qin Wen Zheng v. Gonzales,
500 F.3d at 148. Thus, the BIA did not abuse its discretion
in denying Lin’s motion based on his failure to demonstrate
changed country conditions excusing the untimely filing of
his motion to reopen. See Ali, 448 F.3d at 517.
In addition, the record does not support Lin’s
assertion that the BIA failed to consider his new evidence.
To the contrary, the BIA explicitly mentioned Lin’s
affidavit, CDP membership card, photographs, two news
2
Although Lin cites to country conditions evidence
from 2005 and 2007, because these documents do not appear in
the record we do not consider them. See 8 U.S.C.
§ 1252(b)(4)(A).
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articles, and proof related to Lin’s conversion to
Christianity, and found this evidence neither reliable nor
probative of changed country conditions. See Xiao Ji Chen
v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n.17 (2d Cir.
2006) (presuming “that [the agency] has taken into account
all of the evidence before [it], unless the record
compellingly suggests otherwise”); id. at 342 (explaining
that weight afforded to asylum applicant’s evidence lies
largely within discretion of agency).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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