09-0815-ag
Lin v. Holder
BIA
A095 716 374
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
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 23 rd day of December, two thousand nine.
5
6 PRESENT:
7 RALPH K. WINTER,
8 PIERRE N. LEVAL,
9 REENA RAGGI,
10 Circuit Judges.
11 _________________________________________
12
13 NEN MEI LIN, a.k.a. NEN-MEI LIN,
14 Petitioner,
15
16 v. 09-0815-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Oleh R. Tustaniwsky, Hualian Law
24 Offices, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; James Grimes, Senior
28 Litigation Counsel; Elizabeth Young,
29 Trial Attorney, Office of Immigration
1 Litigation, United States Department
2 of Justice, Washington, D.C.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED, that the petition for review
7 is DENIED.
8 Petitioner Nen Mei Lin, a native and citizen of the
9 People’s Republic of China, seeks review of the January 30,
10 2009 order of the BIA denying her motion to reopen. In re
11 Nen Mei Lin, No. A095 716 374 (B.I.A. Jan. 30, 2009). We
12 assume the parties’ familiarity with the underlying facts
13 and procedural history of the case.
14 We review the BIA’s denial of a motion to reopen for
15 abuse of discretion, Ali v. Gonzales, 448 F.3d 515, 517 (2d
16 Cir. 2006), mindful of “the Supreme Court’s admonition that
17 motions to reopen are disfavored,” Maghradze v. Gonzales,
18 462 F.3d 150, 154 (2d Cir. 2006) (citing INS v. Abudu, 485
19 U.S. 94, 107 (1988) (“There is a strong public interest in
20 bringing litigation to a close as promptly as is consistent
21 with the interest in giving the adversaries a fair
22 opportunity to develop and present their respective
23 cases.”)); see also INS v. Doherty, 502 U.S. 314, 323
24 (1992). When the BIA evaluates country conditions evidence
25 submitted with a motion to reopen, we review its findings
2
1 for substantial evidence. See Jian Hui Shao v. Mukasey, 546
2 F.3d 138, 169 (2d Cir. 2008). Here, the BIA did not abuse
3 its discretion in denying Lin’s motion to reopen based on
4 her failure to establish prima facie eligibility for relief.
5 See Abudu, 485 U.S. at 104.
6 The BIA reasonably concluded that, notwithstanding her
7 membership in the China Democracy Party (“CDP”) in the
8 United States, Lin failed to show that the Chinese
9 government would single her out for persecution upon her
10 return to China, or that the Chinese government has a
11 pattern or practice of persecuting overseas members of the
12 CDP who return to China. See Hongsheng Leng v. Mukasey, 528
13 F.3d 135, 143 (2d Cir. 2008). The BIA also reasonably
14 concluded that the evidence in the record did not describe
15 the persecution or torture of individuals similarly situated
16 to Lin. See Jian Xing Huang v. INS, 421 F.3d 125, 128 (2d
17 Cir. 2005). Contrary to Lin’s argument, the BIA analyzed
18 the most significant pieces of evidence in the record, and
19 adequately indicated the basis for its decision. See Wei
20 Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006) (holding
21 that where the BIA “has given reasoned consideration to the
22 petition, and made adequate findings,” it need not
23 “expressly parse or refute on the record each individual
24 argument or piece of evidence”) (internal quotation marks
3
1 and citations omitted).
2 To the extent Lin urges the Court to remand her case to
3 the BIA to address her July 2007 motion to remand, that
4 argument is not properly before us. The proper mechanism
5 for such an argument would have been a petition for review
6 of the BIA’s July 2008 order, a step Lin failed to take.
7 See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89,
8 90 (2d Cir. 2001) (providing that where an alien timely
9 petitions for review from the denial of a motion to reopen,
10 but not from the underlying affirmance of another decision,
11 this Court may review only the denial of the motion).
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 this petition is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2), and Second
19 Circuit Local Rule 34(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
23
24 By:___________________________
4