         11-3701                                                                       BIA
         Lin v. Holder                                                         A088 552 407



                           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 21st day of August, two thousand twelve.
 5
 6       PRESENT:
 7                       JON O. NEWMAN,
 8                       ROBERT A. KATZMANN,
 9                       CHRISTOPHER F. DRONEY,
10                              Circuit Judges.
11
12       _____________________________________
13
14       YING LIN,
15                       Petitioner,
16
17                       v.                                     11-3701-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:                Gary J. Yerman, New York, New York.
25
26       FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
27                                      Attorney General; James E. Grimes,
28                                      Senior Litigation Counsel; Gerald M.
29                                      Alexander, Trial Attorney, Office of
30                                      Immigration Litigation, United
31                                      States Department of Justice,
32                                      Washington, D.C.
 1
 2       UPON DUE CONSIDERATION of this petition for review of a

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

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

 5   is DENIED.

 6       Petitioner Ying Lin, a native and citizen of China,

 7   seeks review of an August 25, 2011, decision of the BIA

 8   denying his motion to reopen his removal proceedings.       In re

 9   Ying Lin, No. A088 552 407 (B.I.A. Aug. 25, 2011).     We

10   assume the parties’ familiarity with the underlying facts

11   and procedural history 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 January 2011, was untimely because the BIA

20   issued a final order of removal in April 2010.     See 8 U.S.C.

21   § 1229a(c)(7)(C)(I); 8 C.F.R. § 1003.2(c)(2).

22       Lin contends, however, that he established changed

23   circumstances on the basis of the Chinese government’s


                                     2
 1   intensified repression of Catholics following his merits

 2   hearing in June 2008.     See 8 U.S.C. § 1229a(c)(7)(C)(ii)

 3   (providing an exception to the 90-day deadline where a

 4   motion is based on a material change in circumstances in the

 5   country of removal); see also 8 C.F.R. § 1003.2(c)(3)(ii);

 6   In re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007) (“In

 7   determining whether evidence accompanying a motion to reopen

 8   demonstrates a material change in country conditions that

 9   would justify reopening, [the BIA] compares the evidence of

10   country conditions submitted with the motion to those that

11   existed at the time of the merits hearing below.”).     We

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

13   untimely was not an abuse of discretion.

14       In considering Lin’s country conditions evidence, the

15   BIA noted that the Department of State’s 2009 Country Report

16   indicated that the Chinese government continued its

17   harassment of members of Catholic house churches and that

18   the 2009 China Aid Report – the only evidence reflecting an

19   increase in religious repression – did not report an

20   intensification of religious repression in Lin’s home

21   province of Fujian.     While Lin takes issue with the BIA’s

22   finding that his evidence reflected a continuation rather


                                     3
 1   than a material increase in the Chinese government’s level

 2   of religious repression, the task of resolving conflicts in

 3   the record evidence lies “largely within the discretion of

 4   the agency.”    See Jian Hui Shao v. Mukasey, 546 F.3d 138,

 5   171 (2d Cir. 2008).    Where, as here, the agency’s inference

 6   “is tethered to the evidentiary record, we will accord

 7   deference to the finding.”    See Siewe v. Gonzales, 480 F.3d

 8   160, 168-69 (2d Cir. 2007) (“[S]upport for a contrary

 9   inference – even one more plausible or more natural – does

10   not suggest error”).

11       Lin’s contention that the BIA erred in discounting his

12   evidence of conditions for Chinese Catholics outside of his

13   home province of Fujian is misplaced, as Lin bore the burden

14   of supporting his motion with “material” evidence.    See 8

15   C.F.R. § 1003.2(c)(1); see also 8 U.S.C. § 1229a(c)(7)(B);

16   INS v. Abudu, 485 U.S. 94, 104-05 (1988).    As the BIA noted,

17   the Department of State’s 2009 International Religious

18   Freedom Report indicated that the Chinese government’s

19   repression of underground churches varied depending on local

20   conditions.    Given this evidence of variation, the BIA

21   reasonably determined that the China Aid Report’s anecdotal

22   accounts of religious repression outside Lin’s home province


                                    4
 1   of Fujian did not demonstrate a material change in

 2   circumstances.   See Jian Hui Shao, 546 F.3d at 149, 158-59

 3   (stating that it is the applicant’s burden to show a

 4   well-founded fear of persecution in his locality in China in

 5   the context of family planning policies); see also Xiao Ji

 6   Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.

 7   2006) (noting that the weight afforded to the applicant’s

 8   evidence lies largely within the discretion of the agency).

 9       Further, the BIA did not err in affording Lin’s

10   cousin’s letter diminished evidentiary weight.     See Xiao Ji

11   Chen, 471 F.3d at 342.    As the BIA noted, the letter was

12   unsworn, appeared to be created for the purpose of

13   litigation, and was from an interested witness not subject

14   to cross-examination.    Under these circumstances, the BIA

15   did not abuse its discretion in affording the letter

16   diminished evidentiary weight.     See In re H-L-H- & Z-Y-Z-,

17   25 I. & N. Dec. 209, 215 (B.I.A. 2010) (affording diminished

18   evidentiary weight to unsworn letters from the alien’s

19   friends and family because they were from interested

20   witnesses not subject to cross-examination), remanded on

21   other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d

22   Cir. 2012).

23       Because the BIA did not abuse its discretion in denying

24   Lin’s motion as untimely, we do not address his prima facie

                                    5
 1   eligibility for asylum, withholding of removal, and relief

 2   under the Convention Against Torture.     See INS v.

 3   Bagamasbad, 429 U.S. 24, 25 (1976)(per curiam).

 4       For the foregoing reasons, the petition for review is

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

 6   removal that the Court previously granted in this petition

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

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

 9   oral argument in this petition is DENIED in accordance with

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

11   Circuit Local Rule 34.1(b).

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




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