         07-5572-ag (L); 07-5643-ag (Con);08-3537-ag (Con)
         Lin v. Holder
                                                                                       BIA
                                                                                 Brennan, IJ
                                                                               A070 892 381
                                                                               A070 868 369
                                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 20 th day of January, two thousand ten.
 5
 6       PRESENT:
 7                         DENNIS JACOBS,
 8                              Chief Judge,
 9                         ROGER J. MINER,
10                         PIERRE N. LEVAL,
11                              Circuit Judges.
12
13       _______________________________________
14       WAN PING LIN, YAN QING ZHU,
15                Petitioners,
16
17                           v.                                  07-5572-ag (L);
18                                                               07-5643-ag (Con);
19                                                               08-3537-ag (Con)
20       ERIC H. HOLDER, JR., UNITED STATES                      NAC
21       ATTORNEY GENERAL, 1
22                Respondent.
23       _______________________________________




                  1
               Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), Attorney General Eric H. Holder, Jr., is
         automatically substituted for former Attorney General
         Michael B. Mukasey.
 1   FOR PETITIONERS:        Theodore N. Cox, New York, New York.
 2
 3   FOR RESPONDENT:         Gregory G. Katsas, Assistant
 4                           Attorney General; Anthony P.
 5                           Nicastro, Senior Litigation Counsel;
 6                           Office of Immigration Litigation,
 7                           United States Department of Justice,
 8                           Washington, D.C. 2
 9
10       UPON DUE CONSIDERATION of these consolidated petitions

11   for review of two Board of Immigration Appeals (“BIA”)

12   decisions, it is hereby ORDERED, ADJUDGED, AND DECREED, that

13   the petitions for review are DENIED.

14       Petitioners Wan Ping Lin and his wife, Yan Qing Zhu,

15   natives and citizens of the People’s Republic of China, seek

16   review of: (1) the November 28, 2007 order of the BIA

17   affirming the February 24, 2004 decision of Immigration

18   Judge (“IJ”) Noel Anne Brennan denying petitioners’

19   application for asylum, withholding of removal, and relief

20   under the Convention Against Torture (“CAT”), In re Wan Ping

21   Lin, Yan Qing Zhu, Nos. A070 892 381/A070 868 369 (B.I.A.

22   Nov. 28, 2007), aff’g   Nos. A070 892 381/A070 868 369

23   (Immig. Ct. N.Y. City Feb. 24, 2004); and (2) the July 2,

24   2008 order of the BIA denying Lin’s motion to reopen,     In re

25   Wan Ping Lin, No. A070 892 381 (B.I.A. Jul. 2, 2008).     We


         2
           Dana M. Camilleri, a Law Clerk at the U.S. Department
     of Justice, assisted counsel on the brief.

                                   2
1    assume the parties’ familiarity with the underlying facts

2    and procedural history in this case.

3    I.   Dkt. Nos. 07-5572-ag (L), 07-5643-ag (Con)

4         Petitioners argue that the BIA erred in concluding that

5    they failed to demonstrate a well-founded fear of

6    persecution based on the birth of their U.S. citizen

7    children in violation of China’s family planning policy.

8    This argument fails because we have previously reviewed the

9    BIA’s consideration of evidence similar to that submitted by

10   Petitioners and found no error in its conclusion that such

11   evidence is insufficient to establish an objectively

12   reasonable fear of persecution.   See Jian Hui Shao v.

13   Mukasey, 546 F.3d 138, 156-65 (2d Cir. 2008).     Therefore,

14   the agency properly denied Petitioners’ application for

15   asylum.   See 8 U.S.C. § 1101(a)(42).   Because Petitioners

16   were unable to show the objective likelihood of persecution

17   needed to make out an asylum claim, they were necessarily

18   unable to meet the higher standard required to succeed on a

19   claim for withholding of removal and CAT relief where those

20   claims rested on the same factual predicate.    See 8 C.F.R.

21   § 1208.16(b)(1)(i)(A); Paul v. Gonzales, 444 F.3d 148, 156

22   (2d Cir. 2006); Kyaw Zwar Tun v. INS, 445 F.3d 554, 567 (2d

23   Cir. 2006).

                                   3
1    II.   Motion to Reopen: Dkt. No. 08-3537-ag (Con)

2          We review the BIA’s denial of a motion to reopen for

3    abuse of discretion.     See Kaur v. BIA, 413 F.3d 232, 233 (2d

4    Cir. 2005) (per curiam).     Lin’s motion to reopen was

5    untimely.     See 8 C.F.R. § 1003.2(c)(2).    However, there is

6    no time or number limitation for filing a motion to reopen

7    that is “based on changed circumstances arising in the

8    country of nationality or in the country to which

9    deportation has been ordered, if such evidence is material

10   and was not available and could not have been discovered or

11   presented at the previous hearing.”       8 C.F.R. §

12   1003.2(c)(3)(ii).

13         The BIA did not abuse its discretion in denying Lin’s

14   motion to reopen because it reasonably found that he failed

15   to proffer material evidence that would establish his prima

16   facie eligibility for relief.       See 8 C.F.R. § 1003.2(c)(1);

17   see also INS v. Abudu, 485 U.S. 94, 104-05 (1988).        The

18   translation errors, which Lin argues constitute the

19   functional equivalent of changed country conditions, would

20   not materially alter the meaning of the country conditions

21   evidence that both this Court and the BIA have previously

22   considered.


                                     4
1        For the foregoing reasons, these petitions for review

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

3    removal that the Court previously granted in these petitions

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

5    these petitions is DISMISSED as moot. Any pending request

6    for oral argument in these petitions is DENIED in accordance

7    with Federal Rule of Appellate Procedure 34(a)(2), and

8    Second Circuit Local Rule 34(b).

 9                               FOR THE COURT:
10                               Catherine O’Hagan Wolfe, Clerk
11
12                               By:___________________________




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