Qian Lin v. Holder

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 4