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