07-5572-ag (L); 07-5643-ag (Con);08-3537-ag (Con)
Lin v. Holder
BIA
Brennan, IJ
A070 892 381
A070 868 369
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 20 th day of January, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 ROGER J. MINER,
10 PIERRE N. LEVAL,
11 Circuit Judges.
12
13 _______________________________________
14 WAN PING LIN, YAN QING ZHU,
15 Petitioners,
16
17 v. 07-5572-ag (L);
18 07-5643-ag (Con);
19 08-3537-ag (Con)
20 ERIC H. HOLDER, JR., UNITED STATES NAC
21 ATTORNEY GENERAL, 1
22 Respondent.
23 _______________________________________
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey.
1 FOR PETITIONERS: Theodore N. Cox, New York, New York.
2
3 FOR RESPONDENT: Gregory G. Katsas, Assistant
4 Attorney General; Anthony P.
5 Nicastro, Senior Litigation Counsel;
6 Office of Immigration Litigation,
7 United States Department of Justice,
8 Washington, D.C. 2
9
10 UPON DUE CONSIDERATION of these consolidated petitions
11 for review of two Board of Immigration Appeals (“BIA”)
12 decisions, it is hereby ORDERED, ADJUDGED, AND DECREED, that
13 the petitions for review are DENIED.
14 Petitioners Wan Ping Lin and his wife, Yan Qing Zhu,
15 natives and citizens of the People’s Republic of China, seek
16 review of: (1) the November 28, 2007 order of the BIA
17 affirming the February 24, 2004 decision of Immigration
18 Judge (“IJ”) Noel Anne Brennan denying petitioners’
19 application for asylum, withholding of removal, and relief
20 under the Convention Against Torture (“CAT”), In re Wan Ping
21 Lin, Yan Qing Zhu, Nos. A070 892 381/A070 868 369 (B.I.A.
22 Nov. 28, 2007), aff’g Nos. A070 892 381/A070 868 369
23 (Immig. Ct. N.Y. City Feb. 24, 2004); and (2) the July 2,
24 2008 order of the BIA denying Lin’s motion to reopen, In re
25 Wan Ping Lin, No. A070 892 381 (B.I.A. Jul. 2, 2008). We
2
Dana M. Camilleri, a Law Clerk at the U.S. Department
of Justice, assisted counsel on the brief.
2
1 assume the parties’ familiarity with the underlying facts
2 and procedural history in this case.
3 I. Dkt. Nos. 07-5572-ag (L), 07-5643-ag (Con)
4 Petitioners argue that the BIA erred in concluding that
5 they failed to demonstrate a well-founded fear of
6 persecution based on the birth of their U.S. citizen
7 children in violation of China’s family planning policy.
8 This argument fails because we have previously reviewed the
9 BIA’s consideration of evidence similar to that submitted by
10 Petitioners and found no error in its conclusion that such
11 evidence is insufficient to establish an objectively
12 reasonable fear of persecution. See Jian Hui Shao v.
13 Mukasey, 546 F.3d 138, 156-65 (2d Cir. 2008). Therefore,
14 the agency properly denied Petitioners’ application for
15 asylum. See 8 U.S.C. § 1101(a)(42). Because Petitioners
16 were unable to show the objective likelihood of persecution
17 needed to make out an asylum claim, they were necessarily
18 unable to meet the higher standard required to succeed on a
19 claim for withholding of removal and CAT relief where those
20 claims rested on the same factual predicate. See 8 C.F.R.
21 § 1208.16(b)(1)(i)(A); Paul v. Gonzales, 444 F.3d 148, 156
22 (2d Cir. 2006); Kyaw Zwar Tun v. INS, 445 F.3d 554, 567 (2d
23 Cir. 2006).
3
1 II. Motion to Reopen: Dkt. No. 08-3537-ag (Con)
2 We review the BIA’s denial of a motion to reopen for
3 abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d
4 Cir. 2005) (per curiam). Lin’s motion to reopen was
5 untimely. See 8 C.F.R. § 1003.2(c)(2). However, there is
6 no time or number limitation for filing a motion to reopen
7 that is “based on changed circumstances arising in the
8 country of nationality or in the country to which
9 deportation has been ordered, if such evidence is material
10 and was not available and could not have been discovered or
11 presented at the previous hearing.” 8 C.F.R. §
12 1003.2(c)(3)(ii).
13 The BIA did not abuse its discretion in denying Lin’s
14 motion to reopen because it reasonably found that he failed
15 to proffer material evidence that would establish his prima
16 facie eligibility for relief. See 8 C.F.R. § 1003.2(c)(1);
17 see also INS v. Abudu, 485 U.S. 94, 104-05 (1988). The
18 translation errors, which Lin argues constitute the
19 functional equivalent of changed country conditions, would
20 not materially alter the meaning of the country conditions
21 evidence that both this Court and the BIA have previously
22 considered.
4
1 For the foregoing reasons, these petitions for review
2 are DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in these petitions
4 is VACATED, and any pending motion for a stay of removal in
5 these petitions is DISMISSED as moot. Any pending request
6 for oral argument in these petitions is DENIED in accordance
7 with Federal Rule of Appellate Procedure 34(a)(2), and
8 Second Circuit Local Rule 34(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
12 By:___________________________
5