Xia Lin v. Holder

09-2310-ag
Lin v. Holder
BIA
A077 657 975

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 21 st day of April, two thousand ten.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 RICHARD C. WESLEY,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _________________________________________
12
13 XIA LIN,
14 Petitioner,
15
16 v. 09-2310-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Pro se
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Cindy S. Ferrier, Senior
27 Litigation Counsel; P. Michael
28 Truman, Attorney, Civil Division,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a

2 Board of Immigration Appeals (“BIA”) decision, it is hereby

3 ORDERED, ADJUDGED, AND DECREED, that the petition for review

4 is DENIED.

5 Petitioner Xia Lin, a native and citizen of the

6 People’s Republic of China, seeks review of the May 6, 2009,

7 order of the BIA, which denied her motion to reopen. In re

8 Xia Lin, No. A077 657 975 (B.I.A. May 6, 2009). We assume

9 the parties’ familiarity with the underlying facts and

10 procedural history of the case.

11 We review the BIA’s denial of a motion to reopen for

12 abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d

13 Cir. 2005) (per curiam). Here, the BIA did not abuse its

14 discretion in denying Lin’s motion to reopen as untimely

15 because she filed it almost six years after the BIA issued

16 its final order of removal. See 8 C.F.R. § 1003.2(c)(2).

17 Additionally, the BIA did not err in denying Lin’s motion to

18 reopen because she failed to submit a new asylum application

19 setting forth her new claim based on her alleged involvement

20 with the Chinese Democracy Party (“CDP”). See 8 C.F.R.

21 § 1003.2(c)(1); Bi Feng Liu v. Holder, 560 F.3d 485, 490-91

22 (2d Cir. 2009) (finding that because petitioner “did not

2
1 append an application for asylum to his motion to reopen as

2 mandated . . . [the] motion to reopen is, at a minimum,

3 procedurally defaulted”). Lin’s failure to file an asylum

4 application with her motion meant that the motion was

5 procedurally defaulted. See Bi Feng Liu, 560 F.3d at 490-

6 91. That default is dispositive of her petition for review.

7 In any event, we agree with the BIA that Lin’s alleged

8 involvement with the China Democracy Party was not a changed

9 country condition in China. 1 See Wei Guang Wang v. BIA, 437

10 F.3d 270, 273-274 (2d Cir. 2006); Li Yong Zheng v. U.S.

11 Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir. 2005).

12 For the foregoing reasons, the petition for review is

13 DENIED. As we have completed our review, any stay of

14 removal that the Court previously granted in this petition

15 is VACATED, and any pending motion for a stay of removal in

16 this petition is DISMISSED as moot. Any pending request for

17 oral argument in these petitions is DENIED in accordance

18 with Federal Rule of Appellate Procedure 34(a)(2), and

19 Second Circuit Local Rule 34.1(b).

20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
23

1
Lin does not challenge the BIA’s rejection of her
ineffective assistance of counsel claim.

3