Chang Dong Lin v. Holder

U.S. Court of Appeals for the Second Circuit
Chang Dong Lin v. Holder, 562 F. App'x 41 (2d Cir. 2014)

Chang Dong Lin v. Holder

Opinion

SUMMARY ORDER

Petitioner Chang Dong Lin, a native and citizen of China, seeks review of an April 30, 2013, decision of the BIA denying his motion to reopen his removal proceedings. In re Chang Dong Lin, No. A087 481 027 (B.I.A. Apr. 30, 2013). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

We review the BIA’s denial of a motion to reopen for abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (per curiam). An alien seeking to reopen proceedings is required to file a motion to reopen no later than 90 days after the date on which the final administrative decision was rendered. See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2). There is no dispute that Lin’s motion to reopen, filed in 2013, was untimely because his order of removal became final in 2011. See 8 U.S.C. § 1101(a)(47)(B)(I). Lin contends, however, that his conversion to Christianity in the United States and the Chinese government’s awareness of his mailing of materials relating to Christianity to his wife’s underground church in China constitute materially changed country limitation.

We find that the BIA did not abuse its discretion in denying Lin’s motion for failure to demonstrate his prima facie eligibility for relief. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168 (2d Cir. 2008) (recognizing that an alien’s “ability to secure reopening depends on a demonstration of prima facie eligibility for [relief], which means she must show a ‘realistic chance’ that she will be able to obtain such relief’ (citations omitted)). The BIA reasonably relied on the country conditions evidence indicating that China currently allows the practice of Christianity, notwithstanding isolated reports of harassment of some underground church members, a finding that Lin does not specifically challenge on appeal. See Jian Xing Huang v. INS, 421 F.3d 125, 128-29 (2d Cir. 2005) (holding that absent solid support in the record for the petitioner’s assertion that he would be persecuted, his fear was “speculative at best”). While Lin does challenge the BIA’s consideration of the statements from his wife and her fellow underground church members, the BIA did not err in according this evidence diminished weight because it was from interested witnesses not subject to cross-examination and was not supported by any independent evidence. See Matter of HL-H & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (rejecting letters from applicant’s relatives and friends because they were “interested witnesses not subject to cross-examination”), overruled in part on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012); see also Xiao Ji Chen v. United States Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (holding that the weight accorded to evidence lies largely within the agency’s discretion).

Because the BIA did not abuse its discretion in denying Lin’s motion for failure to demonstrate his prima facie eligibility for relief, we decline to consider his chai- *43 lenge to the agency’s alternative finding that country conditions had not materially changed. See INS v. Bagamasbad, 429 U.S. 24, 25, 97 S.Ct. 200, 50 L.Ed.2d 190 (1976) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”).

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.

Reference

Full Case Name
CHANG DONG LIN, Petitioner, v. Eric H. HOLDER, JR., United States Attorney General, Respondent
Status
Unpublished