12-3072
Lin v. Holder
BIA
A077 297 915
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 26th day of November, two thousand thirteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 JON O. NEWMAN,
10 CHRISTOPHER F. DRONEY,
11 Circuit Judges.
12 _____________________________________
13
14 YI LIN LIN, AKA CATHERINE OANH VU,
15 Petitioner,
16
17 v. 12-3072
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONERS: James A. Lombardi, New York, New
25 York.
26
27 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
28 Attorney General; Linda S. Wernery,
29 Assistant Director; Walter Bocchini,
1 Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Yi Lin Lin, a native and citizen of the
11 People’s Republic of China, seeks review of the July 30,
12 2012, order of the BIA denying her motion to reopen. In re
13 Yi Lin Lin, No. A077 297 915 (B.I.A. Jul. 30, 2012). We
14 assume the parties’ familiarity with the underlying facts
15 and procedural history of the case.
16 The BIA’s denial of Lin’s motion to reopen as untimely
17 was not an abuse of discretion. See Kaur v. BIA, 413 F.3d
18 232, 233 (2d Cir. 2005) (per curiam). An alien may file one
19 motion to reopen, generally no later than 90 days after the
20 date on which the final administrative decision was rendered
21 in the proceedings sought to be reopened. 8 U.S.C.
22 § 1229a(c)(7)(C)(I); 8 C.F.R. § 1003.2(c)(2). There is no
23 dispute that Lin’s 2011 motion was untimely, as her final
24 administrative order was issued in 2003. See 8 U.S.C.
25 § 1229a(c)(7)(C)(I); 8 C.F.R. § 1003.2(c)(2). The time
2
1 limitation does not apply to a motion to reopen if it is
2 “based on changed circumstances arising in the country of
3 nationality or in the country to which deportation has been
4 ordered, if such evidence is material and was not available
5 and could not have been discovered or presented at the
6 previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii); see also
7 8 U.S.C. § 1229a(c)(7)(C)(ii).
8 In this case, the BIA correctly found that Lin’s newly
9 commenced practice of Catholicism constituted a changed
10 personal circumstance, not changed conditions arising in
11 China. See Yuen Jin v. Mukasey, 538 F.3d 143, 155 (2d Cir.
12 2008); Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir.
13 2006) (finding that “circumstances entirely of [one’s] own
14 making after being ordered to leave the United States” are
15 not grounds for untimely reopening).
16 Furthermore, Lin failed to provide evidence of
17 conditions for members of unregistered Catholic churches in
18 2001, such that the BIA could determine whether there had
19 been a worsening of conditions that would warrant reopening.
20 See Matter of S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA 2007)
21 (“In determining whether evidence accompanying a motion to
22 reopen demonstrates a material change in country conditions
23 that would justify reopening, [the BIA] compare[s] the
3
1 evidence of country conditions submitted with the motion to
2 those that existed at the time of the merits hearing
3 below.”). While the record contains the 1998 Profile of
4 Asylum Claims in China, which Lin had submitted before the
5 IJ, it describes conditions for Catholics that are similar,
6 or worse, than those described in the 2010 International
7 Religious Freedom Report that Lin submitted in support of
8 her motion. In addition, the BIA did not err in requiring
9 that Lin demonstrate that Catholics in Fujian Province are
10 targeted for persecution, given that her background evidence
11 suggests that the treatment of Christians varies by region.
12 Jian Hui Shao v. Mukasey, 546 F. 3d 138, 149-50, 159-60,
13 163-65 (2d Cir. 2008) (upholding BIA’s analysis that where
14 enforcement of a policy varies by region, it is the
15 applicant’s burden to show a well-founded fear of
16 persecution in his locality in China).
17 The BIA also reasonably discounted the letter from a
18 friend of Lin’s parents because it was not notarized,
19 described an underground church gathering in which the
20 authorities came but no one was arrested, and involved a
21 single event that took place in May 2010 and thus did not
22 show a change in country conditions for Catholics. See Xiao
23 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.
4
1 2006) (holding that the weight afforded to the applicant’s
2 evidence in immigration proceedings lies largely within the
3 discretion of the agency)(internal quotation marks and
4 alteration omitted). Similarly, the BIA discounted the
5 summons that Lin’s parents received, as it had not been
6 authenticated in any way and her parents did not provide any
7 reason to believe the document was authentic. Id.
8 Because substantial evidence supports the BIA’s
9 conclusion that Lin did not establish a change in the
10 treatment of Catholics in China, the BIA did not abuse its
11 discretion in concluding that her motion to reopen was
12 untimely. See Jian Hui Shao, 546 F 3d at 149-508; C.F.R.
13 § 1003.2(c)(3)(ii); 8 U.S.C. § 1229a(c)(7)(C)(ii).
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, any stay of
16 removal that the Court previously granted in this petition
17 is VACATED, and any pending motion for a stay of removal in
18 this petition is DISMISSED as moot. Any pending request for
19 oral argument in this petition is DENIED in accordance with
20 Federal Rule of Appellate Procedure 34(a)(2), and Second
21 Circuit Local Rule 34.1(b).
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
5