10-4815-ag
Lin v. Holder
BIA
A098 492 043
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 17th day of February, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 RAYMOND J. LOHIER, JR.,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12 _______________________________________
13
14 QIAN LIN,
15 Petitioner,
16
17 v. 10-4815-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: G. Victoria Calle, Calle &
25 Associates, New York, New York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Linda S. Wernery, Assistant
29 Director; Theodore C. Hirt,
30 Attorney, Office of Immigration
1 Litigation, Civil Division, United
2 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
8 is DENIED.
9 Qian Lin, a native and citizen of China, seeks review
10 of an October 29, 2010, order of the BIA denying her motion
11 to reopen her removal proceedings. In re Qian Lin, No. A098
12 492 043 (B.I.A. Oct. 29, 2010). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 of the case.
15 We review the BIA’s denial of a motion to reopen for
16 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
17 Cir. 2006). The BIA did not abuse its discretion because
18 Lin’s motion was untimely as it was filed more than 90 days
19 after her final removal order. See 8 U.S.C.
20 § 1229a(c)(7)(C)(i). She argues that she is not bound by
21 the 90-day time limit because her motion included a
22 successive application for asylum under
23 8 U.S.C.§ 1158(a)(2)(D), and thus is not governed by
24 § 1229a(c)(7)(C)(i). This argument is foreclosed by our
2
1 decision in Yuen Jin v. Mukasey, 538 F.3d 143, 153-56 (2d
2 Cir. 2008), in which we held that an alien under a final
3 removal order cannot file a successive asylum application
4 pursuant to 8 U.S.C. § 1158(a)(2)(D) without complying with
5 the procedural requirements, including the timeliness
6 requirements, governing motions to reopen.
7 Alternatively, Lin argues that she was exempt from the
8 time limitation as she established changed conditions in
9 China. See 8 U.S.C. § 1229a(c)(7)(C)(ii). However,
10 substantial evidence supports the BIA’s conclusion that she
11 did not establish changed conditions. As the BIA noted,
12 Lin’s membership in a pro-democracy party in the United
13 States constituted a change in her personal circumstances,
14 not a change in conditions in China. See Wei Guang Wang v.
15 BIA, 437 F.3d 270, 274 (2d Cir. 2006). Moreover, while some
16 evidence in the record could be said to indicate that human
17 rights conditions in China deteriorated in 2008 and 2009,
18 the evidence also indicated that the repression of political
19 dissidents has been constant and ongoing since the time of
20 Lin’s hearing in 2006. Accordingly, we defer to the BIA’s
21 conclusion that Lin did not establish a material change in
22 country conditions. See Siewe v. Gonzales, 480 F.3d 160,
23 167 (2d Cir. 2007) (“Where there are two permissible views
3
1 of the evidence, the fact finder’s choice between them
2 cannot be clearly erroneous.” (quotation omitted)). Thus,
3 the BIA did not abuse its discretion in denying Lin’s motion
4 as untimely. See 8 U.S.C. § 1229a(c)(7)(C)(i), (ii).
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of
7 removal that the Court previously granted in this petition
8 is VACATED, and any pending motion for a stay of removal in
9 this petition is DISMISSED as moot. Any pending request for
10 oral argument in this petition is DENIED in accordance with
11 Federal Rule of Appellate Procedure 34(a)(2), and Second
12 Circuit Local Rule 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
15
16
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