Lin v. U.S. DOJ, (2nd Cir. 2007)

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06-4749-ag

Lin v. U.S. DOJ

BIA

Bukszpan, IJ

A77 023 174

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R U L I N G S BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS

F I L E D AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 32.1

A N D FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A

L I T I G A N T CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST

O N E CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:

( S U M M A R Y ORDER). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER

T O G E T H E R WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED

B Y COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS

P U B L I C L Y ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT

H T T P : / / W W W . C A 2 . U S C O U R T S . G O V /

O R D E R ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE D O C K E T NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED. A t a stated term of the United States Court of Appeals f o r the Second Circuit, held at the Daniel Patrick Moynihan U n i t e d States Courthouse, 500 Pearl Street, in the City of N e w York, on the 17th day of August, two thousand seven. PRESENT: H O N . ROGER J. MINER, H O N . JOSÉ A. CABRANES, H O N . RICHARD C. WESLEY, C i r c u i t Judges. Y I N G LIN, Petitioner, v. 06-4749-ag NAC U . S . DEPARTMENT OF JUSTICE, A T T O R N E Y GENERAL, ET AL., Respondents. F O R PETITIONER: Y a n g Lin, pro se, Bronx, New York. F O R RESPONDENTS: B e c a u s e the Court did not receive a b r i e f from the respondents within f i f t e e n days of the June 6, 2007 due d a t e specified in the scheduling o r d e r issued on April 5, 2007, this c a s e has been decided without the b e n e f i t of respondents' brief. See L o c a l Rule § 0.29(d).

U P O N DUE CONSIDERATION of this petition for review of a d e c i s i o n of the Board of Immigration Appeals ("BIA"), it is h e r e b y ORDERED, ADJUDGED, AND DECREED that the petition for r e v i e w is DENIED.

P e t i t i o n e r Ying Lin, a citizen of the People's Republic o f China, seeks review of a September 25, 2006 order of the B I A denying her motion to reopen. In re Yang Lin, No. A77 0 2 3 174 (B.I.A. Sep. 25, 2006). We assume the parties' f a m i l i a r i t y with the underlying facts and procedural history o f the case.

D e s p i t e the petitioner's arguments regarding the u n d e r l y i n g merits of her asylum claim, the only agency d e c i s i o n that is properly before us is the BIA's September 2 0 0 6 denial of her motion to reopen. See Ke Zhen Zhao v. U . S . Dep't of Justice, 265 F.3d 83, 89-90 (2d Cir. 2001).

W e review the BIA's denial of a motion to reopen for abuse o f discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005). A motion to reopen must be filed within 90 days a f t e r the date on which a final administrative decision was r e n d e r e d in the proceeding sought to be reopened. 8 C.F.R. § 1003.2(c)(2). Here, it is clear that Lin did not file a m o t i o n to reopen within 90 days of the BIA's final decision i n her case. The BIA denied her appeal in October 2002 and s h e filed her motion in August 2006.

H o w e v e r , the time limit does not apply to a motion to r e o p e n that is "based on changed circumstances arising in t h e country of nationality or in the country to which d e p o r t a t i o n has been ordered, if such evidence is material a n d was not available and could not have been discovered or p r e s e n t e d at the previous hearing." 8 C.F.R.§ 1003.2(c)(3)(ii). In Guan v. BIA, we found that the BIA had p r o p e r l y denied a petitioner's motion to reopen because her " e v i d e n c e [was] essentially of changed personal c i r c u m s t a n c e s in the United States based on the birth of her t w o sons, evidence which does not fit under the exception s e t forth in 8 C.F.R. § [1003.2](c)(3)(ii)." 345 F.3d 47, 4 9 (2d Cir. 2003). Here, Lin offered very similar evidence a s that which we found to be inadequate in Guan.

A c c o r d i n g l y , the BIA did not abuse its discretion in denying L i n ' s motion to reopen.

F o r the foregoing reasons the petition for review is DENIED. Any pending request for oral argument in this case i s DENIED in accordance with Federal Rule of Appellate P r o c e d u r e 34(a)(2), Second Circuit Local Rule 34(d)(1).

F O R THE COURT: C a t h e r i n e O'Hagan Wolfe, Clerk By:

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