         08-2609-ag
         Lin v. Holder
                                                                                       BIA
                                                                               A078 383 296
                              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 22 nd day of January, two thousand ten.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                PIERRE N. LEVAL,
 9                JOSÉ A. CABRANES,
10                       Circuit Judges.
11       __________________________________
12       MAO ZHU LIN,
13                Petitioner,
14
15                       v.                                     08-2609-ag
16                                                              NAC
17       ERIC H. HOLDER, JR., 1
18       U.S.ATTORNEY GENERAL,
19                Respondent.
20       __________________________________
21       FOR PETITIONER:        Gary J. Yerman, Esq., New York, New
22                              York.
23
24       FOR RESPONDENT:               Gregory G. Katsas, Assistant
25                                     Attorney General, Civil Division;
26                                     Susan K. Houser, Senior Litigation
27                                     Counsel; Leah V. Durant, Attorney,
28                                     Office of Immigration Litigation,
29                                     U.S. Department of Justice,
30                                     Washington, D.C.
31

                  1
              Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), Attorney General Eric H. Holder, Jr. is
         automatically substituted for former Attorney General
         Michael B. Mukasey as the respondent in this case.
1        UPON DUE CONSIDERATION of this petition for review of a

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

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

4    review is DENIED.

5        Petitioner Mao Zhu Lin, a native and citizen of the

6    People’s Republic of China, seeks review of a May 13, 2008

7    order of the BIA denying his motion to reopen.     In re Mao

8    Zhu Lin, No. A078 383 296 (B.I.A. May 13, 2008). We assume

9    the parties’ familiarity with the underlying facts and

10   procedural history in this case.

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

12   abuse of discretion.   See Ke Zhen Zhao v. U.S. Dep’t of

13   Justice, 265 F.3d 83, 90 (2d Cir. 2001).     A motion to reopen

14   must be filed no later than 90 days after the final

15   administrative decision is rendered in the proceedings that

16   the applicant seeks to reopen.     8 U.S.C. § 1229a(c)(7);

17   8 C.F.R. § 1003.2(c)(2).   In this case, Lin did not file his

18   motion to reopen until more than three years after the

19   issuance of the BIA’s final administrative order, and there

20   is no dispute that his motion was untimely.     However, when a

21   movant raises a claim of ineffective assistance of counsel,

22   the filing deadline may, under certain conditions, be



                                   2
1    equitably tolled.     See Jin Bo Zhao v. INS, 452 F.3d 154,

2    156-59 (2d Cir. 2006).     The filing deadline may also be

3    excused when the movant demonstrates changed country

4    conditions.   See U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.

5    § 1003.2(c)(3)(ii).

6        To merit equitable tolling, the movant must demonstrate

7    that he pursued his case with due diligence during the

8    period of time for which he seeks tolling.     See Iavorski v.

9    I.N.S., 232 F.3d 124, 134-35 (2d Cir. 2000). “[N]o matter

10   how egregiously ineffective counsel’s assistance may have

11   been, an alien will not be entitled to equitable tolling

12   unless he can affirmatively demonstrate that he exercised

13   reasonable due diligence.”     See Cekic v. INS, 435 F.3d 167,

14   170 (2d Cir. 2006).     In this case, the BIA did not abuse its

15   discretion when it found that Lin did not exercise the

16   requisite due diligence.     Lin knew, or should have known, of

17   his former counsel’s alleged ineffective assistance in March

18   2001 when the IJ denied his applications for relief based on

19   lack of prosecution.     However, Lin did not file the

20   underlying motion to reopen until more than six years later.

21   See Iavorski, 232 F.3d at 134.

22       Lin argues that he did not comprehend the full extent

23   of his prior attorney’s negligent misrepresentation until


                                     3
1    “recently,” after his current attorney filed a FOIA request

2    and he was able to obtain and review his case record.

3    However, Lin does not specify which portions of the record

4    triggered this new awareness concerning his former

5    attorney’s ineffective assistance.   Further, this contention

6    is unconvincing given that Lin’s ineffective assistance

7    claim is based on his former counsel’s withdrawal from

8    representation during the March 2001 hearing before the IJ

9    and his failure to file an asylum application on Lin’s

10   behalf.   Accordingly, the BIA reasonably found that Lin

11   failed to exercise the due diligence required to succeed on

12   an ineffective assistance of counsel claim.   See id.

13       In addition, the BIA did not abuse its discretion in

14   finding that the documentation Lin submitted with his motion

15   did not suffice to establish either changed country

16   conditions in China or Lin’s prima facie eligibility for

17   relief.   See 8 U.S.C. § 1229(a)(c)(7)(C)(ii); INS v. Abudu,

18   485 U.S. 94, 104-05 (1988).   We have in other cases reviewed

19   the BIA’s consideration of Lin’s evidence, and evidence

20   similar to it, and found no error in the conclusion that

21   such evidence is insufficient to establish either material

22   changed country conditions or an objectively reasonable fear

23   of persecution.   See Jian Hui Shao v. Mukasey, 546 F.3d 138,


                                   4
1    156-65 (2d Cir. 2008).   The BIA did not err in finding the

2    bulk of Lin’s evidence “cumulative and duplicative” of

3    documentation that it had reviewed in other family-planning

4    cases.   See Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d

5    Cir. 2006) (noting that while the BIA must consider evidence

6    it is “asked to consider time and again[,] . . . it may do

7    so in summary fashion without a reviewing court presuming

8    that it has abused its discretion”).

9        In addition, the BIA did not err in giving little

10   weight to the unauthenticated copy of a letter purportedly

11   issued by the Family Planning Committee of Tingjiang

12   Province to inform Lin that he would be subject to sanctions

13   under the family-planning policy should he return to China.

14   This document was suspect not only because it was

15   unauthenticated but also because it was obtained

16   specifically for the purpose of supporting Lin’s motion.

17   See Yan Song Wong v. Keisler, 505 F.3d 615, 622 (7th Cir.

18   2007)(finding that the agency reasonably declined to give

19   weight to a letter from the authorities in the petitioner’s

20   hometown stating that he would be subject to sterilization

21   because the document was unauthenticated and obtained

22   specifically for the purpose of applying for asylum); cf.

23   Xiao Xing Ni v. Gonzales, 494 F.3d 260, 270 (2d Cir. 2007)


                                   5
1    (“nothing is easier than to submit to an appellate court for

2    the first time documents that, if authentic, would appear to

3    be official statements of the Chinese government. If not

4    these documents or those documents, some others would do.”)

5    (internal citations and quotations omitted).   Accordingly,

6    the BIA reasonably found that none of the evidence that Lin

7    submitted warranted the reopening of his proceedings.

8        For the foregoing reasons, the petition for review is

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

10   removal that the Court previously granted in this petition

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

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

13   oral argument in this petition is DENIED in accordance with

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

15   Circuit Local Rule 34(b).

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