         07-4704-ag
         Lin v. Holder

                                                                                        BIA
                                                                                A073 560 019
                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.     CITATION TO SUMMARY ORDERS
     FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
     AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.     IN A BRIEF OR OTHER PAPER IN WHICH A
     LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
     ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
     “(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
     TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
     BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
     PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
     HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
     ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
     DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.


 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 19 th day of November, two thousand                nine.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                       Chief Judge,
 9                JON. O. NEWMAN,
10                PIERRE N. LEVAL,
11                       Circuit Judges.
12       _________________________________________
13
14       XIU YUN LIN,
15                Petitioner,
16
17                          v.                                  07-4704-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., * UNITED STATES
20       ATTORNEY GENERAL, UNITED STATES
21       DEPARTMENT OF JUSTICE,
22                Respondents.
23       ________________________________________


                        *
               Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), Attorney General Eric H. Holder, Jr. is
         automatically substituted for former Acting Attorney General
         Peter D. Keisler as a respondent in this case.
         0 9 1 4 0 9 -2 1
 1   FOR PETITIONER:           Dehai Zhang, Flushing, New York.
 2
 3   FOR RESPONDENTS:          Gregory G. Katsas, Acting Assistant
 4                             Attorney General; Francis W. Fraser,
 5                             Senior Litigation Counsel; Kate D.
 6                             Balaban, Trial Attorney; Office of
 7                             Immigration Litigation, Civil
 8                             Division, United States Department
 9                             of Justice, Washington, D.C.
10
11       UPON DUE CONSIDERATION of this petition for review of a

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

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

14   is DENIED.

15       Petitioner Xiu Yun Lin, a native and citizen of the

16   People’s Republic of China, seeks review of an October 5,

17   2007 order of the BIA denying her second motion to reopen.

18   In re Xiu Yun Lin, No. A073 560 019 (B.I.A. Oct. 5, 2007).

19   We assume the parties’ familiarity with the underlying facts

20   and procedural history in this case.

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

22   abuse of discretion.     Ali v. Gonzales, 448 F.3d 515, 517 (2d

23   Cir. 2006).   When the BIA considers relevant evidence of

24   country conditions in evaluating a motion to reopen, we

25   review the BIA’s factual findings under the substantial

26   evidence standard.     See Jian Hui Shao v. Mukasey, 546 F.3d

27   138, 169 (2d Cir. 2008).


                                     2
1        The BIA did not err in denying Lin’s untimely motion to

2    reopen.   See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R.

3    § 1003.2(c)(2).   Lin argues that the BIA erred by finding

4    that she failed to produce evidence demonstrating either

5    material changed country conditions sufficient to excuse the

6    untimely filing of her motion to reopen or her prima facie

7    eligibility for relief.    However, these arguments fail

8    because we have previously reviewed the BIA’s consideration

9    of evidence similar to that which Lin submitted and have

10   found no error in its conclusion that such evidence is

11   insufficient to establish either material changed country

12   conditions or a reasonable possibility of persecution.     See

13   Jian Hui Shao, 546 F.3d at 169-72 (noting that “[w]e do not

14   ourselves attempt to resolve conflicts in record evidence, a

15   task largely within the discretion of the agency”); see also

16   Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006)

17   (noting that while the BIA must consider evidence such as

18   “the oft-cited Aird affidavit, which [it] is asked to

19   consider time and again[,] . . . it may do so in summary

20   fashion without a reviewing court presuming that it has

21   abused its discretion”).    Moreover, despite Lin’s argument

22   regarding a document discussing the forced abortion of a


                                    3
1    Hong Kong native in Hunan Province, the agency reasonably

2    found that her evidence failed to describe the persecution

3    of similarly situated individuals.   See Jian Hui Shao, 546

4    F.3d at 160-61, 169-70.

5        For the foregoing reasons, the petition for review is

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

7    removal that the Court previously granted in this petition

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

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

10   oral argument in this petition is DENIED in accordance with

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

12   Circuit Local Rule 34(b).

13                               FOR THE COURT:
14                               Catherine O’Hagan Wolfe, Clerk
15
16                               By:___________________________




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