09-2310-ag
Lin v. Holder
BIA
A077 657 975 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
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SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 21st
day of April, two thousand ten.
PRESENT: BARRINGTON D. PARKER, RICHARD C. WESLEY, DEBRA ANN LIVINGSTON,
Circuit Judges.
_________________________________________
XIA LIN,
Petitioner,
v. ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_________________________________________
FOR PETITIONER:
FOR RESPONDENT:
Pro se
Tony West, Assistant Attorney
General; Cindy S. Ferrier, Senior
Litigation Counsel; P. Michael
Truman, Attorney, Civil Division,
Office of Immigration Litigation, United StatesDepartment of Justice, Washington, D.C.
09-2310-ag
NAC
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UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DENIED.
Petitioner Xia Lin, a native and citizen of the
People’s Republic of China, seeks review of the May 6, 2009,
order of the BIA, which denied her motion to reopen.
Xia Lin, No. A077 657 975 (B.I.A. May 6, 2009).
In re
We assume
the parties’ familiarity with the underlying facts and
procedural history of the case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion.
See Kaur v. BIA, 413 F.3d 232, 233 (2d
Here, the BIA did not abuse its
Cir. 2005) (per curiam).
discretion in denying Lin’s motion to reopen as untimely
because she filed it almost six years after the BIA issued
its final order of removal.
See 8 C.F.R. § 1003.2(c)(2).
Additionally, the BIA did not err in denying Lin’s motion to
reopen because she failed to submit a new asylum application
setting forth her new claim based on her alleged involvement
with the Chinese Democracy Party (“CDP”).
See 8 C.F.R.
§ 1003.2(c)(1); Bi Feng Liu v. Holder, 560 F.3d 485, 490-91
(2d Cir. 2009) (finding that because petitioner “did not
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append an application for asylum to his motion to reopen as
mandated . . . [the] motion to reopen is, at a minimum,
procedurally defaulted”).
Lin’s failure to file an asylum
application with her motion meant that the motion was
procedurally defaulted.
91.
See Bi Feng Liu, 560 F.3d at 490-
That default is dispositive of her petition for review.
In any event, we agree with the BIA that Lin’s alleged
involvement with the China Democracy Party was not a changed
country condition in China.1
See Wei Guang Wang v. BIA, 437
F.3d 270, 273-274 (2d Cir. 2006); Li Yong Zheng v. U.S.
Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir. 2005).
For the foregoing reasons, the petition for review is
DENIED.
As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot.
Any pending request for
oral argument in these petitions is DENIED in accordance
with Federal Rule of Appellate Procedure 34(a)(2), and
Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
Lin does not challenge the BIA’s rejection of her
ineffective assistance of counsel claim.
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hereby