         11-3070-ag
         Lin v. Holder
                                                                                       BIA
                                                                               A073 676 558
                          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 25th day of May, two thousand twelve.
 5
 6       PRESENT:
 7                REENA RAGGI,
 8                RICHARD C. WESLEY,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       CHENG YONG LIN,
14                Petitioner,
15
16                       v.                                     11-3070-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Michael Brown, Law Offices of
24                                     Michael Brown, New York, NY.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Linda S. Wernery, Assistant
28                                     Director; Thankful T. Vanderstar,
29                                     Trial Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   Board of Immigration Appeals (“BIA”) decision, it is hereby

 3   ORDERED, ADJUDGED, AND DECREED, that the petition for review

 4   is DENIED.

 5       Petitioner Cheng Yong Lin, a native and citizen of the

 6   People’s Republic of China, seeks review of a July 14, 2011

 7   decision of the BIA denying his motion to reopen his

 8   deportation proceedings.     In re Cheng Yong Lin, No. A073 676

 9   558 (B.I.A. July 14, 2011).     We assume the parties’

10   familiarity with the underlying facts and procedural history

11   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 September 2010, was untimely because the

20   BIA issued a final order of removal in November 1999.

21       Lin contends, however, that he established a material

22   change in conditions in China excusing the untimeliness of

23   his motion to reopen because he now faces a greater risk of

                                     2
 1   persecution as a result of his pro-democracy activities in

 2   the United States.   See 8 U.S.C. § 1229a(c)(7)(C)(ii).     We

 3   conclude that the BIA’s denial of Lin’s motion to reopen as

 4   untimely was not an abuse of discretion.

 5       As the BIA determined, Lin’s pro-democracy activities

 6   in the United States constitute self-induced changes in

 7   personal circumstances, which are insufficient to excuse the

 8   untimeliness of his motion.   See Wei Guang Wang v. BIA, 437

 9   F.3d 270, 273-74 (2d Cir. 2006).   The BIA also reasonably

10   concluded that the Chinese government’s awareness of Lin’s

11   pro-democracy activities in the United States, as

12   established by his father’s letter and the Changle City Hang

13   Cheng Jie Dao Yang Yu Village Committee Notice, does not

14   constitute a material change in conditions in China because

15   Lin’s original asylum claim was also based on the Chinese

16   government’s awareness of his pro-democracy activities.      See

17   8 C.F.R. § 1003.2(c)(3)(ii); In re S-Y-G-, 24 I. & N. Dec.

18   247, 253 (B.I.A. 2007).

19       Lin’s contention that the BIA failed to assess the

20   materiality of his country conditions evidence is not

21   supported by the record.   The BIA found that Lin was not

22   similarly situated to the democracy activists described in


                                   3
 1   his media reports because his conduct occurred in the United

 2   States rather than China.    Moreover, because the BIA

 3   reasonably determined that Lin’s father’s letter and the

 4   Changle City Hang Cheng Jie Dao Yang Yu Village Committee

 5   Notice did not establish any change in conditions in China,

 6   the BIA did not abuse its discretion by failing to assess

 7   the materiality of this evidence.       See INS v. Bagamasbad,

 8   429 U.S. 24, 25 (1976).

 9       The BIA also did not abuse its discretion in affording

10   diminished weight to Lin’s father’s letter and the Changle

11   City Hang Cheng Jie Dao Yang Yu Village Committee Notice.

12   While Lin argues that the BIA improperly discounted this

13   evidence due to a lack of authentication, the weight

14   afforded to an applicant’s evidence in immigration

15   proceedings lies largely within the discretion of the

16   agency.   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

17   315, 342 (2d Cir. 2006).    Even assuming that Lin is correct,

18   remand of these proceedings would be futile, and thus

19   inappropriate, because the BIA reasonably concluded that

20   Lin’s father’s letter and the Changle City Hang Cheng Jie

21   Dao Yang Yu Village Committee Notice did not establish a

22   change in country conditions.       See id. at 339.


                                     4
 1       Lastly, Lin’s argument that the BIA engaged in

 2   impermissible fact-finding is misplaced.    We have recognized

 3   that the BIA will engage in fact-finding when considering

 4   relevant evidence of country conditions in evaluating a

 5   motion to reopen.   See Jian Hui Shao v. Mukasey, 546 F.3d

 6   138, 169 (2d Cir. 2008).

 7       For the foregoing reasons, the petition for review is

 8   DENIED.   As we have completed our review, any stay of

 9   removal that the Court previously granted in this petition

10   is VACATED, and any pending motion for a stay of removal in

11   this petition is DISMISSED as moot. Any pending request for

12   oral argument in this petition is DENIED in accordance with

13   Federal Rule of Appellate Procedure 34(a)(2) and Second

14   Circuit Local Rule 34.1(b).

15                                 FOR THE COURT:
16                                 Catherine O’Hagan Wolfe, Clerk
17
18




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