Opinion
No. 06-3355-ag NAC.
August 22, 2007.
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.
FOR PETITIONER: Mao Gen Lin, pro se , New York, N.Y. FOR RESPONDENT: Peter D. Keisler, Assistant Attorney General, Civil Division; Cindy S. Ferrier, Senior Litigation Counsel; Hannah Baublitz, Attorney, Office of Immigration Litigation, Department of Justice, Washington, D.C.
PRESENT: HON. JOSEPH M. McLAUGHLIN, HON. GUIDO CALABRESI, HON. ROSEMARY S. POOLER, Circuit Judges.
Petitioner Mao Gen Lin, a native and citizen of the People's Republic of China, seeks review of a June 29, order of the BIA denying his motion to reopen his removal proceedings. In re Maogen Lin, No. A73 635 816 (B.I.A. June 29, 2006). We assume the parties' familiarity with the underlying facts and procedural history of this case.
When the agency denies a motion to reopen, this Court reviews the BIA's decision for an abuse of discretion. Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005). An abuse of discretion may be found where the BIA's decision "provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner." Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (internal citations omitted).
As a preliminary matter, a petition for review of a BIA order must be filed within thirty days of the entry of that order. See 8 U.S.C. § 1252(b)(1); Paul v. Gonzales, F.3d 148, 153 (2d Cir. 2006). In his brief to this Court, Lin purports to challenge the IJ's decision to grant him voluntary departure, as well as each of the BIA's decisions denying his various motions to reopen. However, we may review only the BIA's June 2006 order denying Lin's most recent motion to reopen, as that is the only decision for which a petition for review was timely filed. 8 U.S.C. § 1252(b)(1).
_____A motion to reopen "asks that the proceedings be reopened for new evidence and a new decision, usually after an evidentiary hearing." Ke Zhen Zhao, 265 F.3d at 90. An alien is limited to one motion to reopen removal proceedings. See 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2). A motion that does not comply with this numerical limitation can only be brought where the alien can establish "changed country conditions arising in the country of nationality. . . ." 8 U.S.C. § 1229a(c)(7)(C)(ii); C.F.R. § 1003.2(c)(3)(ii).
_____Here, we conclude that the BIA did not abuse its discretion in denying Lin's motion for exceeding the numerical limit applicable to motions to reopen. See C.F.R. § 1003.2(c)(2). Not counting Lin's June 1999 motion to reopen, which was exempt from the numerical limitations pursuant to 8 C.F.R. § 1208.18(b)(2), this was Lin's second motion to reopen. As such, to prevail Lin needed to demonstrate "changed country conditions arising in the country of nationality. . . ." 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). However, as the government argues, Lin's motion made only "generalized statements about how the Chinese government persecutes Falun Gong practitioners." Indeed, rather than asserting "changed" conditions, Lin states that the Chinese government is "still" persecuting Falun Gong practitioners. While Lin refers to State Department reports describing interrogations and beatings of Falun Gong practitioners, he did not attach those reports to his motion or even indicate which reports he is referring to. Further, although in his motion, Lin stated that he "was told" of a "massive propaganda campaign" against Falun Gong practitioners, he provided no corroborative evidence of such a campaign. Under these circumstances, the BIA cannot be said to have abused its discretion in denying Lin's motion to reopen.
As to Lin's assertion of ineffective assistance of counsel, the government is correct that this argument was presented for the first time in Lin's brief to this Court. As such, the argument is unexhausted and we decline to consider it. See 8 U.S.C. § 1252(d)(1); Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).
For the foregoing reasons, the petition for review is DENIED. Having 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 this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1).