     17-2259
     Lin v. Barr
                                                                                   BIA
                                                                           A079 141 366

                        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 TO 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 Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 17th day of April, two thousand nineteen.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            REENA RAGGI,
10            SUSAN L. CARNEY,
11                 Circuit Judges.
12   _____________________________________
13
14   BAI XIANG LIN,
15            Petitioner,
16
17                 v.                                            17-2259
18                                                               NAC
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.*
22   _____________________________________
23
24
25   FOR PETITIONER:                  Margaret W. Wong, Esq.,
26                                    Cleveland, OH.
27


     *Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
     Attorney General William P. Barr is automatically
     substituted for former Acting Attorney General Matthew G.
     Whitaker.
1    FOR RESPONDENT:                  Chad A. Readler, Acting Assistant
2                                     Attorney General, Civil Division;
3                                     Song E. Park, Senior Litigation
4                                     Counsel; Matt A. Crapo, Attorney,
5                                     Office of Immigration Litigation,
6                                     United States Department of
7                                     Justice, Washington, DC.
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       Petitioner Bai Xiang Lin, a native and citizen of the

14   People’s Republic of China, seeks review of June 23, 2017

15   decision of the BIA denying his third motion to reopen.              In

16   re Bai Xiang Lin, No. A079 141 366 (B.I.A. June 23, 2017).

17   We assume the parties’ familiarity with the underlying facts

18   and procedural history in this case.

19       We review the BIA’s denial of Lin’s motion to reopen for

20   abuse   of   discretion    and   consider   whether    its   conclusion

21   regarding    changed      country    conditions   is    supported   by

22   substantial evidence.        Jian Hui Shao v. Mukasey, 546 F.3d

23   138, 168-69 (2d Cir. 2008).         It is undisputed that Lin’s 2017

24   motion to reopen was untimely and number-barred because it

25   was his third motion to reopen, and he filed it nearly 8 years
                                         2
1    after the BIA affirmed his removal order.            See 8 U.S.C.

2    § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2).        Although

3    exceeding the time and number limitations may be excused under

4    certain circumstances, the BIA did not abuse its discretion

5    in   concluding   that   neither   ineffective   assistance   nor   a

6    change in country conditions excused petitioner from meeting

7    these limitations in this case.

8         The time for filing a motion to reopen may be tolled if

9    the movant establishes ineffective assistance of counsel and

10   shows that he acted with diligence in raising the claim.        See

11   Rashid v. Mukasey, 533 F.3d 127, 130 (2d Cir. 2008); Jian Hua

12   Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007); Cekic v. INS,

13   435 F.3d 167, 170 (2d Cir. 2006).       The BIA did not abuse its

14   discretion in declining to toll the time limit here because

15   Lin raised the same ineffective assistance claim in his prior

16   motion and petition, both of which were denied because he had

17   not shown due diligence. See Bai Xiang Lin v. Lynch, 615 F.

18   App’x 706, 707-08 (2d Cir. 2015).       Lin did not identify any

19   new information that would merit revisiting the issue now.

20        Although the time and number limitations for filing a

21   motion to reopen do not apply if reopening is sought to allow
                                        3
1    an application for asylum and the motion to reopen is “based

2    on changed country conditions arising in the country of

3    nationality,”    the   evidence   submitted   must       demonstrate   a

4    “material” change since the time of the original hearing.

5    8 U.S.C.     § 1229a(c)(7)(A),    (C)(ii);    see    also      8 C.F.R.

6    § 1003.2(c)(3)(ii); In re S-Y-G-, 24 I. & N. Dec. 247, 253

7    (B.I.A. 2007) (“In determining whether evidence accompanying

8    a motion to reopen demonstrates a material change in country

9    conditions that would justify reopening, [the BIA] compare[s]

10   the evidence of country conditions submitted with the motion

11   to those that existed at the time of the merits hearing

12   below.”).     The BIA acknowledged the news article and State

13   Department    report    that   Lin    submitted,     but     reasonably

14   concluded that those documents did not reflect a material

15   worsening of conditions in China related to the enforcement

16   of the family planning policy in the relevant time period.

17   Both   documents   established    that   China     has     consistently

18   engaged in coercive population control programs since 1971

19   and reflect a recent lessening of restrictions, in that China

20   has raised the birth limit from one to two children per

21   couple.     Although the news article reports continued harsh
                                       4
1    restrictions on people who have more than two children, those

2    restrictions do not constitute a change in country conditions

3    because they were also reflected in the evidence presented at

4    Lin’s original hearing.          See In re S-Y-G-, 24 I. & N. Dec.

5    at 253.    Thus, on this record, the agency was not compelled

6    to   conclude    that    Lin’s    evidence    reflected    a   change   in

7    conditions material to his fear of harm as someone who

8    resisted the prior family planning policy.                See 8 U.S.C.

9    § 1252(b)(4)(B)      (“administrative         findings    of   fact     are

10   conclusive      unless   any     reasonable    adjudicator     would     be

11   compelled to conclude to the contrary”).

12        For the foregoing reasons, the petition for review is

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

14   that the Court previously granted in this petition is VACATED,

15   and any pending motion for a stay of removal in this petition

16   is DISMISSED as moot.       Any pending request for oral argument

17   in this petition is DENIED in accordance with Federal Rule of

18   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

19   34.1(b).

20                                      FOR THE COURT:
21                                      Catherine O’Hagan Wolfe,
22                                      Clerk of Court
                                          5
