Ying Lin v. Holder

11-3701 BIA Lin v. Holder A088 552 407 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 21st day of August, two thousand twelve. 5 6 PRESENT: 7 JON O. NEWMAN, 8 ROBERT A. KATZMANN, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 12 _____________________________________ 13 14 YING LIN, 15 Petitioner, 16 17 v. 11-3701-ag 18 NAC 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Gary J. Yerman, New York, New York. 25 26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant 27 Attorney General; James E. Grimes, 28 Senior Litigation Counsel; Gerald M. 29 Alexander, Trial Attorney, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 Washington, D.C. 1 2 UPON DUE CONSIDERATION of this petition for review of a 3 Board of Immigration Appeals (“BIA”) decision, it is hereby 4 ORDERED, ADJUDGED, AND DECREED, that the petition for review 5 is DENIED. 6 Petitioner Ying Lin, a native and citizen of China, 7 seeks review of an August 25, 2011, decision of the BIA 8 denying his motion to reopen his removal proceedings. In re 9 Ying Lin, No. A088 552 407 (B.I.A. Aug. 25, 2011). We 10 assume the parties’ familiarity with the underlying facts 11 and procedural history in this case. 12 We review the BIA’s denial of a motion to reopen for 13 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 14 (2d Cir. 2006). An alien seeking to reopen proceedings is 15 required to file a motion to reopen no later than 90 days 16 after the date on which the final administrative decision 17 was rendered. See 8 U.S.C. § 1229a(c)(7)(C)(I); 8 C.F.R. 18 § 1003.2(c)(2). There is no dispute that Lin’s motion to 19 reopen, filed in January 2011, was untimely because the BIA 20 issued a final order of removal in April 2010. See 8 U.S.C. 21 § 1229a(c)(7)(C)(I); 8 C.F.R. § 1003.2(c)(2). 22 Lin contends, however, that he established changed 23 circumstances on the basis of the Chinese government’s 2 1 intensified repression of Catholics following his merits 2 hearing in June 2008. See 8 U.S.C. § 1229a(c)(7)(C)(ii) 3 (providing an exception to the 90-day deadline where a 4 motion is based on a material change in circumstances in the 5 country of removal); see also 8 C.F.R. § 1003.2(c)(3)(ii); 6 In re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007) (“In 7 determining whether evidence accompanying a motion to reopen 8 demonstrates a material change in country conditions that 9 would justify reopening, [the BIA] compares the evidence of 10 country conditions submitted with the motion to those that 11 existed at the time of the merits hearing below.”). We 12 conclude that the BIA’s denial of Lin’s motion to reopen as 13 untimely was not an abuse of discretion. 14 In considering Lin’s country conditions evidence, the 15 BIA noted that the Department of State’s 2009 Country Report 16 indicated that the Chinese government continued its 17 harassment of members of Catholic house churches and that 18 the 2009 China Aid Report – the only evidence reflecting an 19 increase in religious repression – did not report an 20 intensification of religious repression in Lin’s home 21 province of Fujian. While Lin takes issue with the BIA’s 22 finding that his evidence reflected a continuation rather 3 1 than a material increase in the Chinese government’s level 2 of religious repression, the task of resolving conflicts in 3 the record evidence lies “largely within the discretion of 4 the agency.” See Jian Hui Shao v. Mukasey, 546 F.3d 138, 5 171 (2d Cir. 2008). Where, as here, the agency’s inference 6 “is tethered to the evidentiary record, we will accord 7 deference to the finding.” See Siewe v. Gonzales, 480 F.3d 8 160, 168-69 (2d Cir. 2007) (“[S]upport for a contrary 9 inference – even one more plausible or more natural – does 10 not suggest error”). 11 Lin’s contention that the BIA erred in discounting his 12 evidence of conditions for Chinese Catholics outside of his 13 home province of Fujian is misplaced, as Lin bore the burden 14 of supporting his motion with “material” evidence. See 8 15 C.F.R. § 1003.2(c)(1); see also 8 U.S.C. § 1229a(c)(7)(B); 16 INS v. Abudu, 485 U.S. 94, 104-05 (1988). As the BIA noted, 17 the Department of State’s 2009 International Religious 18 Freedom Report indicated that the Chinese government’s 19 repression of underground churches varied depending on local 20 conditions. Given this evidence of variation, the BIA 21 reasonably determined that the China Aid Report’s anecdotal 22 accounts of religious repression outside Lin’s home province 4 1 of Fujian did not demonstrate a material change in 2 circumstances. See Jian Hui Shao, 546 F.3d at 149, 158-59 3 (stating that it is the applicant’s burden to show a 4 well-founded fear of persecution in his locality in China in 5 the context of family planning policies); see also Xiao Ji 6 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 7 2006) (noting that the weight afforded to the applicant’s 8 evidence lies largely within the discretion of the agency). 9 Further, the BIA did not err in affording Lin’s 10 cousin’s letter diminished evidentiary weight. See Xiao Ji 11 Chen, 471 F.3d at 342. As the BIA noted, the letter was 12 unsworn, appeared to be created for the purpose of 13 litigation, and was from an interested witness not subject 14 to cross-examination. Under these circumstances, the BIA 15 did not abuse its discretion in affording the letter 16 diminished evidentiary weight. See In re H-L-H- & Z-Y-Z-, 17 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (affording diminished 18 evidentiary weight to unsworn letters from the alien’s 19 friends and family because they were from interested 20 witnesses not subject to cross-examination), remanded on 21 other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d 22 Cir. 2012). 23 Because the BIA did not abuse its discretion in denying 24 Lin’s motion as untimely, we do not address his prima facie 5 1 eligibility for asylum, withholding of removal, and relief 2 under the Convention Against Torture. See INS v. 3 Bagamasbad, 429 U.S. 24, 25 (1976)(per curiam). 4 For the foregoing reasons, the petition for review is 5 DENIED. As we have completed our review, any stay of 6 removal that the Court previously granted in this petition 7 is VACATED, and any pending motion for a stay of removal in 8 this petition is DISMISSED as moot. Any pending request for 9 oral argument in this petition is DENIED in accordance with 10 Federal Rule of Appellate Procedure 34(a)(2), and Second 11 Circuit Local Rule 34.1(b). 12 FOR THE COURT: 13 Catherine O’Hagan Wolfe, Clerk 14 15 16 6