         08-4937-ag
         Lin v. Holder
                                                                                       BIA
                                                                               Van Wyke, IJ
                                                                               A070 527 735
                              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 2 nd day of February, two thousand eleven.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                BARRINGTON D. PARKER,
 9                RICHARD C. WESLEY,
10                      Circuit Judges.
11       _________________________________________
12
13       XIU HUA LIN,
14                Petitioner,
15
16                           v.                                 08-4937-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL * ,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Raymond Lo, Kuzmin & Associates,
24                                     P.C., New York, New York.


                         *
                  Pursuant to Federal Rule of Appellate Procedure
             43(c)(2), Attorney General Eric H. Holder, Jr. is
             substituted for former Attorney General Michael B.
             Mukasey as Respondent.
1    FOR RESPONDENT:         Tony West, Assistant Attorney
2                            General; Michael P. Lindemann,
3                            Assistant Director; Mark C. Walters,
4                            Senior Litigation Counsel, Office of
5                            Immigration Litigation, United
6                            States Department of Justice,
7                            Washington, D.C.
8
9        UPON DUE CONSIDERATION of this petition for review of a

10   Board of Immigration Appeals (“BIA”) decision, it is hereby

11   ORDERED, ADJUDGED, AND DECREED, that the petition for review

12   is DENIED.

13       Xiu Hua Lin, a native and citizen of China, seeks

14   review of a September 8, 2008, order of the BIA vacating the

15   September 14, 2005, decision of Immigration Judge (“IJ”)

16   William Van Wyke, which granted reopening of her removal

17   proceedings and her application for asylum.    In re Lin, No.

18   A070 527 735 (B.I.A. Sept. 8, 2008), vacating No. A070 527

19   735 (Immig. Ct. N.Y. City Sept. 14, 2005).    We assume the

20   parties’ familiarity with the underlying facts and

21   procedural history in this case.

22       Under the circumstances of this case, we review solely

23   the decision of the BIA.   See Yan Chen v. Gonzales, 417 F.3d

24   268, 271 (2d Cir. 2005).   The applicable standards of review

25   are well-established.   See Salimatou Bah v. Mukasey, 529

26   F.3d 99, 110 (2d Cir. 2008); Shu Wen Sun v. BIA, 510 F.3d


                                   2
1    377, 379 (2d Cir. 2007).

2        The BIA did not err in asserting jurisdiction over the

3    IJ’s September 2003 order granting Lin’s motion to reopen,

4    even though the government failed to directly appeal that

5    order, because the BIA generally does not entertain

6    interlocutory appeals, but rather will review interlocutory

7    decisions on review of the IJ’s final decision.   See Matter

8    of Sacco, 15 I. & N. Dec. 109, 110 (BIA 1974); see also

9    Singh-Bhathal v. INS, 170 F.3d 943, 945 (9th Cir. 1999).

10   The BIA thus had jurisdiction to review, on appeal from the

11   subsequent grant of asylum, not only the grant of asylum,

12   but also the IJ’s initial grant of the motion to reopen.

13       The BIA did not abuse its discretion in vacating the

14   grant of reopening, as the motion to reopen was untimely and

15   Lin did not meet her burden of showing a change in country

16   conditions in China, as required to excuse the untimely

17   filing.   An alien may file only one claim for asylum, and

18   that application must be filed within one year of arrival in

19   the United States.   See 8 U.S.C. §§ 1158(a)(2)(B),(C).

20   There is an exception to the time and numerical bars for

21   asylum applications where an applicant “demonstrates to the

22   satisfaction of the Attorney General either the existence of


                                   3
1    changed circumstances which materially affect the

2    applicant’s eligibility for asylum or extraordinary

3    circumstances relating to the delay in filing an application

4    within the [one-year] period.” 8 U.S.C. § 1158(a)(2)(D).

5    However, § 1158(a)(2)(D) does not apply to applicants, like

6    Lin, who were already subject to a final order of removal.

7    See Yuen Jin v. Mukasey, 538 F.3d 143, 156 (2d. Cir 2008)

8    (upholding BIA’s determination that procedural requirements

9    of motions to reopen applied); Matter of C-W-L-, 24 I. & N.

10   Dec. 346, 349-50 (BIA 2007).

11       The BIA did not err in applying both Matter of C-W-L-

12   and Yuen Jin to Lin’s case.    See 8 C.F.R.

13   § 1003.1(d)(3)(ii); see also NLRB v. Coca-Cola Bottling Co.,

14   55 F.3d 74, 78 (2d Cir. 1995).     Accordingly, Lin’s motion

15   was required to conform to the requirements of 8 C.F.R.

16   § 1003.2(c), which governs motions to reopen.       See Yuen Jin,

17   538 F.3d at 156.   Because Lin was filing a motion to reopen

18   after a final order of removal, and that motion was filed

19   more than five years after the final administrative decision

20   was rendered in her case, there is no dispute that it was

21   untimely.   See 8 C.F.R. § 1003.2(c)(2).      Additionally, the

22   birth of Lin’s children in the United States after her final


                                    4
1    order of removal did not establish changed country

2    conditions “arising in the country of nationality.”     Id.;

3    see Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129,

4    130-31 (2d Cir. 2005) (finding that the birth of U.S.

5    citizen children constitutes a change in personal

6    circumstances and not a change in country conditions, and

7    therefore does not establish an exception to the filing

8    deadline for motions to reopen).

9        Lin also argues that the IJ was acting within his sua

10   sponte authority, and that the BIA “disregarded the

11   jurisdictional and discretionary authority” of the IJ by

12   vacating his decision.   While 8 C.F.R. § 1003.23(b)(1)

13   grants an IJ the authority to “upon his or her own motion at

14   any time . . . reopen or reconsider any case in which he or

15   she has made a decision,” sua sponte reopening “is not meant

16   to be used as a general cure for filing defects or to

17   otherwise circumvent the regulations,” but rather is limited

18   to “exceptional situations.”     Matter of J-J-, 21 I. & N.

19   Dec. 976, 984 (BIA 1997).   Moreover, the BIA reviews de novo

20   discretionary decisions of an IJ.     See 8 C.F.R.

21   § 1003.1(d)(3)(ii); see also Matter of Martinez, 25 I. & N.

22   Dec. 66, 69, 76-78 (BIA 2009).     Thus, in this case, the BIA


                                    5
1    did not err in reviewing de novo the IJ’s discretionary

2    decision to grant reopening.     As discussed above, because

3    Lin failed to demonstrate changed country conditions, the

4    BIA’s reversal of reopening was not an abuse of discretion.

5        Lin also argues that “the failure of the Board to

6    review or discuss the [IJ’s] decisions clearly violated

7    [her] due process rights and prior court decisions.”

8    However, “an alien who has already filed one asylum

9    application, been adjudicated removable and ordered

10   deported, and who has nevertheless remained in the country

11   illegally for several years, does not have a liberty or

12   property interest in a discretionary grant of asylum.”     Yuen

13   Jin, 538 F.3d at 157.   Moreover, even if Lin did have a

14   protectable interest in relief, her due process rights have

15   not been violated, as the BIA did review and discuss the

16   IJ’s findings in its decision.     See id.; Wei Guang Wang v.

17   BIA, 437 F.3d 270, 273-74, 275 (2d Cir. 2006).

18       For the foregoing reasons, the petition for review is

19   DENIED.   As we have completed our review, any stay of

20   removal that the Court previously granted in this petition

21   is VACATED, and any pending motion for a stay of removal in

22   this petition is DISMISSED as moot. Any pending request for

23   oral argument in this petition is DENIED in accordance with
                                   6
1   Federal Rule of Appellate Procedure 34(a)(2), and Second

2   Circuit Local Rule 34.1(b).

3                                 FOR THE COURT:
4                                 Catherine O’Hagan Wolfe, Clerk
5




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