12-3197
Lin v. Lynch
BIA
A099 026 744
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 16th day of March, two thousand sixteen.
PRESENT:
ROSEMARY S. POOLER,
DEBRA ANN LIVINGSTON,
DENNY CHIN,
Circuit Judges.
_____________________________________
GUANG LI LIN,
Petitioner,
v. 12-3197
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.1
_____________________________________
FOR PETITIONER: Richard Tarzia, Belle Mead, N.J.
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Loretta E. Lynch is
automatically substituted for former Attorney General
Eric H. Holder, Jr.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Linda S. Wernery,
Assistant Director; Theodore C.
Hirt, Senior Litigation Counsel,
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.
Guang Li Lin, a native and citizen of the People’s
Republic of China, seeks review of a July 19, 2012 decision
of the BIA denying his motion to reopen. In re Guang Li
Lin, No. A099 026 744 (B.I.A. July 19, 2012). We assume the
parties’ familiarity with the underlying facts and
procedural history of this case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion, mindful of the Supreme Court’s
admonition that such motions are “disfavored.” Ali v.
Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.
Doherty, 502 U.S. 314, 322-23 (1992)). Where the BIA has
considered relevant evidence of country conditions in
evaluating a motion to reopen, we review the BIA’s factual
findings for substantial evidence. See Jian Hui Shao v.
Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
2
An alien must file a motion to reopen within 90 days
after the date on which the agency’s final administrative
decision was rendered. 8 U.S.C. § 1229a(c)(7)(C)(i);
8 C.F.R. § 1003.2(c)(2). Lin’s motion was undisputably
untimely because it was filed more than one year after the
agency’s final order of removal. See 8 U.S.C.
§ 1229a(c)(7)(C)(i). However, there is no time limitation
for filing a motion to reopen if it “is based on changed
country conditions arising in the country of nationality or
the country to which removal has been ordered, if such
evidence is material and was not available and would not
have been discovered or presented at the previous
proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also
8 C.F.R. § 1003.2(c)(3)(ii). We find that the BIA did not
abuse its discretion in denying Lin’s untimely motion to
reopen.
Lin argues that the BIA erred in concluding that he
failed to demonstrate material changed country conditions
sufficient to excuse the time limitation for filing his
motion to reopen. In support of his motion, Lin submitted a
letter from a neighbor in China, who claimed that he had
been persecuted on account of his Christian faith. However,
3
the BIA reasonably determined that this letter was entitled
to little weight given the underlying adverse credibility
determination made by the immigration judge following Lin’s
asylum hearing. See Qin Wen Zheng v. Gonzales, 500 F.3d
143, 146–49 (2d Cir. 2007). Contrary to Lin’s contention,
the generalized country conditions evidence did not indicate
conditions in China had worsened such that individuals
similarly situated to Lin faced persecution. See 8 U.S.C. §
1229a(c)(7)(C)(ii); see also Jian Hui Shao, 546 F.3d at 169.
Moreover, given the BIA’s explicit discussion of the
evidence submitted, we are not persuaded by Lin’s assertion
that the BIA failed to consider his evidence. See Xiao Ji
Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 336 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”). Accordingly, substantial
evidence supports the BIA's conclusion that Lin did not
establish changed country conditions which would excuse the
time limit for filing his motion to reopen. See 8 U.S.C. §
1229a(c)(7)(C).
Because the BIA did not abuse its discretion in denying
Lin’s untimely motion, we decline to consider Lin’s prima
4
facie eligibility for asylum and withholding of removal, as
the BIA did not reach this issue. See INS v. Bagamasbad,
429 U.S. 24, 25 (1976).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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