Lin v. Barr

     18-2074
     Lin v. Barr
                                                                         BIA
                                                                    Nelson, IJ
                                                                A 072 183 175
                        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 TO 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
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 29th day of October, two thousand twenty.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            DENNY CHIN,
 9            JOSEPH F. BIANCO,
10                 Circuit Judges.
11   _____________________________________
12
13   XIANG QIU LIN,
14            Petitioner,
15
16                 v.                                  18-2074
17                                                     NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:               Xiang Qiu Lin, pro se, San
24                                 Lorenzo, CA.
25
26   FOR RESPONDENT:               Jeffrey Bossert Clark, Acting
27                                 Assistant Attorney General; Carl
28                                 H. McIntyre, Assistant Director;
 1                             Benjamin J. Zeitlin, Trial
 2                             Attorney, Office of Immigration
 3                             Litigation, United States
 4                             Department of Justice, Washington,
 5                             DC.

 6       UPON DUE CONSIDERATION of this petition for review of a

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

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

9    is DENIED.

10       Petitioner Xiang Qiu Lin, a native and citizen of the

11   People’s Republic of China, seeks review of a June 21,

12   2018, decision of the BIA affirming a January 5, 2018,

13   decision of an Immigration Judge (“IJ”) denying Lin’s

14   motion to reopen.   In re Xiang Qiu Lin, No. A 072 183 175

15   (B.I.A. Jun. 21, 2018), aff’g No. A 072 183 175    (Immig.

16   Ct. N.Y. City Jan. 5, 2018).    We assume the parties’

17   familiarity with the underlying facts and procedural

18   history in this case.

19       Under the circumstances of this case, we review both

20   the IJ’s and BIA’s decisions “for the sake of

21   completeness.”   Wangchuck v. Dep’t of Homeland Sec., 448

22 F.3d 524

, 528 (2d Cir. 2006).   We review the agency’s

23   denial of a motion to reopen for abuse of discretion but

24   review any findings regarding changed country conditions
                                   2
 1   for substantial evidence.   See Jian Hui Shao v. Mukasey,

 2   

546 F.3d 138

, 168–69 (2d Cir. 2008).   “An abuse of

 3   discretion may be found in those circumstances where the

 4   [BIA’s] decision provides no rational explanation,

 5   inexplicably departs from established policies, is devoid

 6   of any reasoning, or contains only summary or conclusory

 7   statements; that is to say, where the [BIA] has acted in an

 8   arbitrary or capricious manner.”   Ke Zhen Zhao v. U.S.

 9   Dep’t of Justice, 

265 F.3d 83

, 93 (2d Cir. 2001) (internal

10   citations omitted).

11       An alien seeking to reopen proceedings to apply for new

12   relief may file one motion to reopen no later than 90 days

13   after the date on which the final administrative decision

14   was rendered.   8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.

15   § 1003.23(b)(1).   It is undisputed that Lin’s 2017 motion

16   to reopen was untimely and number barred because he filed

17   it 17 years after the IJ ordered him deported in absentia

18   in 2000 and he had filed a prior motion to reopen in 2014.

19   The filing period, however, may be tolled for ineffective

20   assistance of counsel if the movant shows that he has

21   exercised due diligence throughout the period he seeks to


                                   3
 1   toll.    Rashid v. Mukasey, 

533 F.3d 127

, 130–31 (2d Cir.

 2   2008).   Moreover, the number and time limitations for

 3   filing a motion to reopen do not apply if reopening is

 4   sought to apply for asylum and the motion is “based on

 5   changed country conditions arising in the country of

 6   nationality or the country to which removal has been

 7   ordered, if such evidence is material and was not available

 8   and would not have been discovered or presented at the

 9   previous proceeding.”   8 U.S.C. § 1229a(c)(7)(C)(ii); see

10   also 8 C.F.R. § 1003.23(b)(4)(i).

11       The agency did not err in declining to reopen based on

12   ineffective assistance of counsel.   First, as the

13   Government notes, Lin does not meaningfully argue in his

14   brief that he diligently pursued his claim, and he has

15   therefore waived review of the issue.   See Yueqing Zhang v.

16   Gonzales, 

426 F.3d 541

, 541 n.1, 545 n.7 (2d Cir. 2005)

17   (issues not sufficiently argued are deemed waived).

18   Regardless of waiver, there is no error.    To satisfy the

19   diligence requirement, “an alien is required to exercise

20   due diligence both before and after he has or should have

21   discovered [the] ineffective assistance.”    Rashid, 

533 F.3d 4

 1   at 132 (emphasis omitted).   “This includes both the period

 2   of time before the ineffective assistance of counsel was or

 3   should have been discovered and the period from that point

 4   until the motion to reopen is filed.”

Id. Lin appears to

 5   have discovered that he was ordered deported in early 2000,

 6   when he visited his attorney’s office shortly after the IJ

 7   ordered him removed in absentia.   Lin did not detail any

 8   efforts to remedy his situation from early 2000 until he

 9   filed his motions to reopen in 2014 and 2017.    Accordingly,

10   the agency did not err in finding a lack of due diligence.

11   See Jian Hua Wang v. B.I.A., 

508 F.3d 710

, 715 (2d Cir.

12   2007) (recognizing that there is no time period that is per

13   se unreasonable but citing several cases where “a

14   petitioner who wait[ed] two years or longer to take steps

15   to reopen a proceedings ha[d] failed to demonstrate due

16   diligence.”).

17       As to his claim of changed country conditions, Lin’s

18   practice of Christianity is a change in his personal

19   circumstances that does not excuse the time and number

20   limitations on his motion to reopen.    See Wei Guang Wang v.

21   B.I.A., 

437 F.3d 270

, 273–74 (2d Cir. 2006); Yuen Jin v.


                                   5
 1   Mukasey, 

538 F.3d 143

, 155 (2d Cir. 2008).   To the extent

 2   that Lin argues that conditions have worsened for

 3   Christians in China, his briefs to the BIA and this Court

 4   discuss only more recent events and do not make the

 5   necessary comparison to conditions before his 2000

 6   deportation order.   See In re S-Y-G-, 24 I. & N. Dec. 247,

 7   253 (B.I.A. 2007) (“In determining whether evidence

 8   accompanying a motion to reopen demonstrates a material

 9   change in country conditions that would justify reopening,

10   [the agency] compare[s] the evidence of country conditions

11   submitted with the motion to those that existed at the time

12   of the merits hearing below.”).   Moreover, the evidence in

13   the record does not reflect a material change.    A 1995

14   State Department report stated that the Chinese

15   government’s “attitude towards religion has vacillated

16   since” 1979 and reported a growing number of persecution

17   claims from members of unsanctioned Christian churches.

18   Lin did not provide any country conditions evidence to

19   support his 2017 motion to reopen, and the references in

20   his motion to reopen and brief to this Court simply reflect

21   a continuation of religious repression.


                                   6
 1       Accordingly, because Lin did not exercise due diligence

 2   in pursuing his ineffective assistance of counsel claim or

 3   demonstrate a material change in conditions for Christians

 4   in China, he did not satisfy any exception to the time and

 5   number limitations on his motion to reopen and the agency

 6   did not abuse its discretion in denying his motion as time

 7   and number barred.   See 8 U.S.C. § 1229a(c)(7)(A), (C)(i)–

 8   (ii); 

Rashid, 533 F.3d at 132

–33.

9        For the foregoing reasons, the petition for review is

10   DENIED.   All pending motions and applications are DENIED

11   and stays VACATED.

12                               FOR THE COURT:
13                               Catherine O’Hagan Wolfe,
14                               Clerk of Court




                                   7

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