09-4210-ag
Lin v. Holder
BIA
Nelson, IJ
A073 540 565
A070 868 821
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 3 rd day of June, two thousand ten.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 RICHARD C. WESLEY,
9 PETER W. HALL,
10 Circuit Judges.
11 _______________________________________
12
13 XUE HUI LIN, YAN HONG LIN,
14 Petitioners,
15
16 v. 09-4210-ag
17 NAC
18 ERIC H. HOLDER, JR., U.S. ATTORNEY
19 GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Gerald Karikari, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General, Civil Division, Anh-Thu P.
27 Mai-Windle, Senior Litigation
28 Counsel, Pegah Vakili, Trial
29 Attorney, Office of Immigration
30 Litigation, U.S. Department of
31 Justice, Washington, D.C.
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 Xue Hui Lin and Yan Hong Lin, natives and citizens of
6 China, seek review of the September 16, 2009, order of the
7 BIA affirming the October 17, 2007, decision of Immigration
8 Judge (“IJ”) Barbara A. Nelson denying their motion to
9 reopen, reconsider, and reinstate. 1 In re Xue Hui Lin, et
10 al., Nos. A073 540 565/A070 868 821 (B.I.A. Sept. 16, 2009),
11 aff’g Nos. A073 540 565/A070 868 821 (Immig. Ct. N.Y. City
12 Oct. 17, 2007). We assume the parties’ familiarity with the
13 underlying facts and procedural history of the case.
14 I. Scope of Review
15 As an initial matter, the arguments advanced in Lin’s
16 brief largely challenge the IJ’s underlying denial of his
17 application for asylum. However, we are without
18 jurisdiction to consider Lin’s challenge to the IJ’s March
19 2006 decision. See Ke Zhen Zhao v. U.S. Dep’t of Justice,
1
Xue Hui Lin’s asylum application included his wife,
Yan Hong Lin, as a derivative applicant. The IJ’s
decision primarily discussed Xue Hui Lin’s eligibility
for asylum and related relief. Therefore, for the sake
of clarity, this order refers only to Xue Hui Lin as
“Lin” throughout.
2
1 265 F.3d 83, 89-90 (2d Cir. 2001). Instead, we limit our
2 review to the BIA’s September 2009 decision affirming the
3 IJ’s October 2007 decision. Moreover, we lack jurisdiction
4 to review Lin’s challenge to the BIA’s decision to affirm
5 without opinion the IJ’s decision. See Kambolli v Gonzales,
6 449 F.3d 454, 463 (2d Cir. 2006) (finding that this Court
7 “lack[s] jurisdiction to review decisions by BIA members to
8 affirm IJ decisions without opinion”).
9 II. Motion to Reopen and Reconsider
10 Under the circumstances of this case, we review the
11 IJ’s decision alone. 2 See Shunfu Li v. Mukasey, 529 F.3d
12 141, 146 (2d Cir. 2008). We review the agency’s denial of a
13 motion to reopen and reconsider for abuse of discretion.
14 See Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir.
15 2006); Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per
16 curiam).
17 In denying Lin’s motion to reopen and reconsider, the
18 IJ found that it was untimely filed because “the Court’s
19 March 22, 2006 decision [was] the final administrative
2
In his brief before us, Lin does not challenge: (1)
the IJ’s determination that he failed to present new and
previously unavailable evidence regarding the IJ’s
adverse credibility determination; and (2) the IJ’s
finding that she lacked jurisdiction to review the BIA’s
dismissal of his merits appeal as untimely filed.
3
1 order.” See 8 C.F.R. § 1003.23(b) (providing that a motion
2 to reopen before an IJ must be filed no later than 90 days
3 after the date on which the final administrative decision
4 was rendered and that a motion to reconsider must be filed
5 no later than 30 days thereafter). Although Lin argues that
6 in its July 2007 decision, the BIA instructed the IJ to
7 accept a motion to reopen regardless of its timeliness, he
8 misconstrues the BIA’s decision. In dismissing Lin’s merits
9 appeal as untimely, the BIA instructed Lin that if he sought
10 to challenge its finding that his appeal was untimely, he
11 should file a motion to reconsider with the BIA. It further
12 stated that if he sought to challenge “any other” finding,
13 he should file a motion to reopen with the IJ. These
14 instructions were not a “signal” for the IJ to consider any
15 motion, regardless of its timeliness. Rather, they simply
16 informed Lin which tribunal had jurisdiction to consider the
17 various arguments he might assert. Thus, the IJ did not err
18 in denying Lin’s motion to reopen and reconsider as
19 untimely. 8 C.F.R. § 1003.23(b); see Jin Ming Liu, 439 F.3d
20 at 111; Kaur, 413 F.3d at 233.
21 III. Motion to Reissue
22 Finally, contrary to Lin’s argument that the IJ abused
23 her discretion in denying, as untimely, his motion to
24 reissue, that was not the basis for the IJ’s denial of his
4
1 motion to reissue. Rather, the IJ declined to reissue her
2 previous decision because Lin had advanced no reason for her
3 to do so. In any event, we have found that as long as the
4 IJ’s decision is properly served, the time for appeal begins
5 to run and the agency does not abuse its discretion in
6 denying a motion to reissue the IJ’s prior decision. See
7 Ping Chen v U.S. Att’y Gen., 502 F.3d 73, 76-77 (2d Cir.
8 2007).
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any stay of
11 removal that the Court previously granted in this petition
12 is VACATED, and any pending motion for a stay of removal in
13 this petition is DISMISSED as moot. Any pending request for
14 oral argument in this petition is DENIED in accordance with
15 Federal Rule of Appellate Procedure 34(a)(2), and Second
16 Circuit Local Rule 34.1(b).
17
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
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