Lin v. Yates

15-2116 Lin v. Yates BIA A076 505 806 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 TO 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 for 2 the Second Circuit, held at the Thurgood Marshall United States 3 Courthouse, 40 Foley Square, in the City of New York, on the 4 24th day of January , two thousand seventeen. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 DEBRA ANN LIVINGSTON, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 QIN DI LIN, 14 Petitioner, 15 16 v. 15-2116 17 NAC 18 SALLY Q. YATES, UNITED STATES 19 ACTING ATTORNEY GENERAL, 20 Respondent.1 21 _____________________________________ 22 23 FOR PETITIONER: Robert J. Adinolfi, New York, N.Y. 24 25 26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 27 Assistant Attorney General; Kiley 28 Kane, Senior Litigation Counsel; 29 Annette M. Wietecha, Attorney, 1 - Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Sally Q. Yates is automatically substituted for former Attorney General Loretta E. Lynch as Respondent. 1 Office of Immigration Litigation, 2 United States Department of Justice, 3 Washington, D.C. 4 5 UPON DUE CONSIDERATION of this petition for review of a 6 Board of Immigration Appeals (“BIA”) decision, it is hereby 7 ORDERED, ADJUDGED, AND DECREED that the petition for review is 8 DENIED. 9 Petitioner Qin Di Lin, a native and citizen of the People’s 10 Republic of China, seeks review of a June 15, 2015, decision 11 of the BIA denying his untimely motion to reopen. In re Qin 12 Di Lin, No. A076 505 806 (B.I.A. June 15, 2015). We assume the 13 parties’ familiarity with the underlying facts and procedural 14 history in this case. 15 “We review the denial of motions to reopen immigration 16 proceedings for abuse of discretion.” Ali v. Gonzales, 448 17 F.3d 515, 517 (2d Cir. 2006). When the BIA considers relevant 18 evidence of country conditions in evaluating a motion to reopen, 19 we review the BIA’s factual findings under the substantial 20 evidence standard. Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 21 (2d Cir. 2008). 22 It is undisputed that Lin’s 2014 motion to reopen was 23 untimely because his order of removal was final in 2003. 24 8 U.S.C. § 1229a(c)(7)(C)(i) (setting 90-day period for filing 2 1 motion to reopen); 8 C.F.R. § 1003.2(c)(2) (same); see 8 U.S.C. 2 § 1101(a)(47)(B)(i) (defining finality). This time limitation 3 may be excused if the motion requests reopening to apply for 4 asylum and “is based on changed country conditions arising in 5 the country of nationality or the country to which removal has 6 been ordered, if such evidence is material and was not available 7 and would not have been discovered or presented at the previous 8 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii). Here, the BIA 9 reasonably concluded that Lin failed to establish a material 10 change in conditions for Christians in China. 11 “In determining whether evidence accompanying a motion to 12 reopen demonstrates a material change in country conditions 13 that would justify reopening, [the BIA] compare[s] the evidence 14 of country conditions submitted with the motion to those that 15 existed at the time of the merits hearing below.” In re S-Y-G-, 16 24 I. & N. Dec. 247, 253 (B.I.A. 2007). The BIA’s conclusion 17 that conditions had not changed is supported by substantial 18 evidence. See Jian Hui Shao, 546 F.3d at 169. As the BIA 19 found, the reports from 2002 and 2013 reflected that the 20 government continued to target Christian groups that practiced 21 in underground or house churches. For example, the 2002 State 22 Department International Religious Freedom Report, stated that 3 1 the Chinese government “continued its crackdown on unregistered 2 churches.” The evidence Lin submitted in support of reopening, 3 including the 2013 Annual Report of the Congressional-Executive 4 Commission on China and the State Department’s 2013 Annual 5 Report of International Religious Freedom, reflect that these 6 practices have continued. 7 Lin’s assertions that the BIA “cherry picked” excerpts from 8 the evidence and wholly discounted the 2013 ChinaAid report are 9 misplaced. “[W]e presume that [the agency] has taken into 10 account all of the evidence before [it], unless the record 11 compellingly suggests otherwise,” and the weight accorded to 12 country conditions evidence “lies largely within the 13 discretion” of the agency. Xiao Ji Chen v. U.S. Dep’t of 14 Justice, 471 F.3d 315, 336 n.17 & 342 (2d Cir. 2006) (alteration 15 and internal quotation marks omitted). The BIA explicitly 16 discussed much of the country conditions evidence, and, thus, 17 the record does not compellingly suggest that it ignored any 18 evidence. The BIA was not required to parse the ChinaAid 19 report: if, as here, “the BIA ‘has given reasoned 20 consideration . . . and made adequate findings,’” it need not 21 “‘expressly parse or refute on the record’ each . . . piece of 22 evidence offered by the petitioner.” Wei Guang Wang v. BIA, 4 1 437 F.3d 270, 275 (2d Cir. 2006) (quoting Xiao Ji Chen v. U.S. 2 Dep’t of Justice, 434 F.3d 144, 160 n.13 (2d Cir. 2006)). Lin 3 himself cherry picked one page of the ChinaAid report which 4 stated that in “[i]n 2013, government persecution of Christians 5 and churches in China worsened significantly,” but ignored the 6 fact that the report identified no incidents of persecution in 7 his home province of Fujian. See Jian Hui Shao, 546 F.3d at 8 171 (explaining that agency has discretion “to resolve 9 conflicts in record evidence” and concluding that BIA 10 identified substantial evidence where it “did not overlook any 11 record evidence favorable to the petitioner”). 12 Given the evidence of a continuation of conditions, the BIA 13 reasonably concluded that Lin did not establish a material 14 change in the conditions for Christians in China. Accordingly, 15 the BIA did not abuse its discretion in denying Lin’s motion 16 to reopen as untimely. See 8 U.S.C. § 1229a(c)(7)(C); 17 8 C.F.R. § 1003.2(c)(2). 18 Because the BIA’s timeliness ruling is dispositive, we 19 decline to reach the issue of whether Lin has established prima 20 facie eligibility for relief. INS v. Abudu, 485 U.S. 94, 104-05 21 (1988) (observing that the agency may deny an untimely motion 22 to reopen for failure to demonstrate materially changed country 5 1 conditions or prima facie eligibility for the underlying 2 substantive relief sought); INS v. Bagamasbad, 429 U.S. 24, 25 3 (1976) (“As a general rule courts and agencies are not required 4 to make findings on issues the decision of which is unnecessary 5 to the results they reach.”). 6 For the foregoing reasons, the petition for review is 7 DENIED. As we have completed our review, any stay of removal 8 that the Court previously granted in this petition is VACATED, 9 and any pending motion for a stay of removal in this petition 10 is DISMISSED as moot. Any pending request for oral argument 11 in this petition is DENIED in accordance with Federal Rule of 12 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 13 34.1(b). 14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, Clerk 16 6