Shao Lin Lin v. Holder

558 F. App'x 125

• Court: Court of Appeals for the Second Circuit
• Decided: March 17, 2014
• Docket: 13-395
• Status: Unpublished

Opinion

SUMMARY ORDER

Petitioner Shao Lin Lin, a native and citizen of China, seeks review of a January 14, 2018 decision of the BIA denying her motion to reopen. In Shao Lin Lin, a.k.a. Tracy Hum, No. A077 957 393 (B.I.A. Jan. 14, 2013). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

We review the BIA’s denial of a motion to reopen for abuse of discretion, mindful that such motions are “disfavored,” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (citing INS v. Doherty, 502 U.S. 314, 322-23, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992)), and the agency’s factual findings regarding country conditions under the substantial evidence standard, Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008).

Aliens seeking to reopen proceedings may move to reopen no later than 90 days after the final administrative decision was rendered. 8 U.S.C. 1229a(c)(7)(C)(i); 8 C.F.R. 1003.2(c)(2). However, this time limitation does not apply if the motion is “based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceedings.” 8 U.S.C. 1229a(c)(7)(C)(ii); 8 C.F.R. 1003.2(c)(3)(ii).

It is undisputed that Lin’s motion to reopen was untimely; she filed it nearly eight years after the agency rendered its final decision. The BIA determined that she failed to carry her heavy burden of demonstrating material changed country conditions that would excuse her delay. See Matter of S-Y-G-, 24 I. & N. Dec. 247, 251, 258 (BIA 2007); 8 U.S.C. 1229a(c)(7)(C)(ii). The BIA “compare[d] the evidence of country conditions submitted with the motion to those that existed at the time of the merits hearing below,” and concluded that mistreatment of Christian groups in China represents not a change in conditions, but rather a longstanding and ongoing problem. Matter of S-Y-G-, 24 I. & N. Dec. at 253. This was no abuse of discretion. See, e.g., Matter of S-Y-G-, 24 I. & N. Dec. at 257 (“Change that is incremental or incidental does not meet the regulatory requirements for late motions of this type.”).

Similarly, the agency was within its discretion to conclude that Lin’s motion was predicated on a change in her personal circumstances — converting to Christianity — rather than a change in China. As this Court has admonished, “[a] self-induced change in personal circumstances cannot suffice” to excuse an untimely motion to reopen. Wei Guang Wang v. BIA, 437 F.3d 270, 274 (2d Cir.2006).

The agency was entitled to give little weight to a letter from Lin’s friend in China because it was not notarized and was prepared specifically for Lin’s motion. See, e.g., Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (BIA 2010) (giving diminished evidentiary weight to letters from interested witnesses not subject to cross-examination), rev’d on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir.2012). In any event, the letter said nothing about changed country conditions. Matter of S-Y-G-, 24 I. & N. Dec. at 253.

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).