         13-37
         Lin v. Holder
                                                                                       BIA
                                                                               A077 297 344

                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 16th day of October, two thousand fourteen.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                BARRINGTON D. PARKER,
 9                DEBRA ANN LIVINGSTON,
10                     Circuit Judges.
11       _____________________________________
12
13       JIAN LING LIN, AKA JIAN LING,
14                 Petitioner,
15
16                       v.                                       13-37
17                                                                NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONERS:              Chunyu Wang, Flushing, N.Y.
24
25       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
26                                     General; John S. Hogan, Senior
27                                     Litigation Counsel; Andrea N. Gevas,
28                                     Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   is DENIED.

 5       Petitioner Jian Ling Lin, a native and citizen of

 6   China, seeks review of the December 27, 2012, order of the

 7   BIA denying her motion to reopen.       In re Jian Ling Lin, No.

 8   A077 297 344 (B.I.A. Dec. 27, 2012).       We assume the parties’

 9   familiarity with the underlying facts and procedural history

10   of the case.

11       We lack jurisdiction to consider whether Lin should

12   have been granted prosecutorial discretion.       See 8 U.S.C.

13   § 1252(g); see also Wayte v. U.S., 470 U.S. 598, 607 (1985)

14   (observing that “the decision to prosecute is particularly

15   ill-suited to judicial review”); Gasparian v. Holder, 700

16   F.3d 611, 614 (1st Cir. 2012) (“[I]mmigration statutes do

17   not confer jurisdiction on [the] court to review acts of

18   prosecutorial discretion.”).

19       However, we review the BIA’s denial of Lin’s motion to

20   reopen for an abuse of discretion.       See Kaur v. BIA, 413

21   F.3d 232, 233 (2d Cir. 2005).       Aliens seeking to reopen

22   proceedings may file a motion to reopen no later than 90


                                     2
 1   days after the date on which the final administrative

 2   decision was rendered.     8 U.S.C. § 1229a(c)(7)(C)(i);

 3   8 C.F.R. § 1003.2(c)(2).     In this case, it is undisputed

 4   that Lin’s 2012 motion to reopen was untimely because her

 5   order of removal became final in 2005.     CAR at 626.     See

 6   8 U.S.C. § 1229a(c)(7)(C)(i); see also 8 C.F.R.

 7   § 1003.2(c)(2).   An untimely motion may be excused if an

 8   alien received ineffective assistance of counsel or

 9   demonstrates changed country conditions.     See Zhang v.

10   Holder, 617 F.3d 650, 658 (2d Cir. 2010); 8 U.S.C.

11   § 1229a(c)(7)(C)(ii).

12       The BIA did not abuse its discretion when it found Lin

13   failed to demonstrate ineffective assistance of counsel.         In

14   order to prevail on a claim of ineffective assistance of

15   counsel, a movant must show that the alien demonstrated

16   “due diligence” in pursuing her claim during “both the

17   period of time before the ineffective assistance of counsel

18   was or should have been discovered and the period from that

19   point until the motion to reopen is filed.” See Rashid v.

20   Mukasey, 533 F.3d 127, 132 (2d Cir. 2008).

21       Lin failed to demonstrate due diligence.     Lin argues

22   that she should have discovered the ineffective assistance


                                     3
 1   in June 2012, after she was picked up by the immigration

 2   authorities.   She states that in June 2005, when her removal

 3   order became final, she did not understand that she was

 4   removable because she still had an application pending for

 5   derivative asylee benefits.     However, Lin’s former attorney

 6   emphatically stated that there was no such pending

 7   application, and Lin has not submitted evidence of one.        Her

 8   former attorney also submitted evidence that Lin had been

 9   informed of the consequences of a removal order.      Further,

10   Lin’s alternative argument that she sought subsequent legal

11   advice undermines her claim that she did not know that she

12   had been the victim of ineffective assistance.       See Cekic v.

13   I.N.S., 435 F.3d 167, 171 (2d Cir. 2006).      Thus, the BIA

14   also did not abuse its discretion in finding that Lin failed

15   to demonstrate due diligence.       Rashid, 533 F.3d at 131.

16       Lin also failed to demonstrate a change in country

17   conditions in China.     Lin submitted the 2005 and 2011

18   Country Reports, which stated that enforcement of family

19   planning laws varied significantly by location and used

20   identical language with regard to enforcement in Lin’s home

21   province of Fujian.    The BIA may reasonably require evidence

22   of how the family planning laws are implemented in the

23   alien’s home province.     See Shao v. Mukasey, 546 F.3d 138,

                                     4
 1   163-65 (2d Cir. 2008).    Moreover, while Lin argues that IUD

 2   insertion for women with only one child has increased, the

 3   BIA has held that IUD insertion does not constitute

 4   persecution absent aggravating factors.    Matter of M-F-W- &

 5   L-G-, 24 I&N Dec. 633, 636 (BIA 2008); see also Mei Fun Wong

 6   v. Holder, 633 F.3d 64, 70-71 (2d Cir. 2011).    Thus, the

 7   BIA’s determination that there had been no change in country

 8   conditions did not constitute an abuse of discretion.    See

 9   Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).

10       For the foregoing reasons, the petition for review is

11   DENIED.    Petitioner’s pending request for oral argument in

12   this petition is DENIED in accordance with Federal Rule of

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

14   34.1(b).

15                                FOR THE COURT:
16                                Catherine O’Hagan Wolfe, Clerk
17
18




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