                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 14-1263
                                      ___________

            CHUNLONG LIN, a/k/a Chung Rong Lin, a/k/a Chungpong Lin
                                          Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES

                      ____________________________________

                        On Petition for Review of an Order of the
                             Board of Immigration Appeals
                             (Agency No. A099-670-042)
                      Immigration Judge: Honorable Susan G. Roy
                       ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   August 1, 2014
             Before: FISHER, VANASKIE and ALDISERT, Circuit Judges

                             (Opinion filed: August 6, 2014)
                                     ___________

                                       OPINION
                                      ___________

PER CURIAM

       Chun Rong Lin1 petitions for review of the Board of Immigration Appeals’ denial

of his motion to reopen. For the reasons that follow, we will deny the petition for review.


1
 Petitioner has stated that his name was previously misspelled in documents related to
his case and that this is his preferred spelling.
                                                  I.

       Lin, a citizen of China, entered the United States in 2006. Shortly thereafter, he

was served with a notice of appeal charging him as removable pursuant to 8 U.S.C.

§ 1182(a)(6)(A) as an alien present in the United States without being admitted or

paroled. At his immigration hearing, Lin conceded his removability as charged, but

sought asylum, withholding of removal, and relief under the Convention Against Torture

on the basis of China’s family planning policy and his fear of being forcibly sterilized

should he return to China. After the Immigration Judge (“IJ”) determined that Lin had

not credibly testified as to the number of forced abortions and sterilization attempts that

he and his wife had experienced, she entered an order of removal against Lin on February

4, 2009.

       Lin appealed to the Board of Immigration Appeals (“the Board”) arguing, among

other issues, that the inconsistencies in his testimony were due to memory impairment

following a head injury. The Board reviewed the inconsistencies contained in the record

and compared Lin’s asylum applications with his testimony on direct and cross

examination, and found no clear error in the IJ’s adverse credibility determination. The

Board then stated that Lin had not provided any evidence to support his claim of memory

loss. The Board also noted that, even had Lin’s testimony been credible, “he would not

be able to establish asylum eligibility based on his wife’s forced abortion and

sterilization.” Accordingly, the Board dismissed Lin’s appeal on December 11, 2009.


                                              2
       More than three years later, Lin filed a motion to reopen with the Board. He

sought to present evidence to support his claim that he suffered from a cognitive

disability. The Board first found that Lin’s motion to reopen was untimely, as it had not

been filed within 90 days of the Board’s December 11, 2009 order. The Board also found

that Lin could not demonstrate that his evidence of cognitive disability was new or

previously unavailable because the documents he sought to submit were from 2001,

2002, and 2004 (i.e. before his removal hearing). Further, Lin had not argued that the

documents were previously unavailable. Finally, the Board found that no exceptional

circumstances existed warranting the exercise of its sua sponte discretion to reopen

proceedings. The Board therefore denied Lin’s motion. Lin, pro se, filed a timely

petition for review.

                                             II.

       We have jurisdiction under 8 U.S.C. § 1252, and we review denials of motions to

reopen under a deferential abuse of discretion standard.2 See Sevoian v. Ashcroft,

290 F.3d 166, 170, 171 (3d Cir. 2002). “Discretionary decisions of the [Board] will not

be disturbed unless they are found to be ‘arbitrary, irrational or contrary to law.’” Tipu v.

I.N.S., 20 F.3d 580, 582 (3d Cir. 1994). In general, motions to reopen must be filed

within 90 days from the date “on which the final administrative decision was rendered in

the proceeding sought to be reopened.” See 8 C.F.R. § 1003.2(c)(2); see also 8 U.S.C.


2
  We lack jurisdiction to review the portion of the Board’s decision that denied sua sponte
reopening. See Pllumi v. Att’y Gen. of the U.S., 642 F.3d 155, 159 (3d Cir. 2011).
                                             3
§ 1229a(c)(7)(C). Lin did not dispute that his motion to reopen was filed more than 90

days after the agency’s final decision. Rather, he argued that it took him three years to

obtain Chinese medical records documenting his cognitive impairments, and that he filed

the motion to reopen soon after he received them. Nevertheless, Lin did not establish a

basis for equitably tolling the time to file a motion to reopen.3 The Board thus did not act

irrationally, arbitrarily, or contrary to law in denying his motion. See Tipu, 20 F.3d at

582.

       Accordingly, we will deny the petition for review.




3
  While changed country conditions may serve as a basis for tolling the 90-day time
period, see Pllumi, 642 F.3d at 161, Lin has not argued the existence of changed country
conditions. Ineffective assistance of counsel can also serve as a basis for equitably
tolling the time to file a motion to reopen if substantiated and accompanied by a showing
of due diligence, see Mahmood v. Gonzales, 427 F.3d 248, 252 (3d Cir. 2005), but Lin
has not made such a claim.
                                               4
