07-5406-ag
Lin v. Holder
BIA
Hom, IJ
A073 134 465
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 27th day of October, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JON O. NEWMAN,
10 PIERRE N. LEVAL,
11 Circuit Judges.
12 _________________________________________
13
14 DIAN WEI LIN,
15 Petitioner,
16
17 v. 07-5406-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,*
21 Respondent.
22 _________________________________________
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
08232010-24
1 FOR PETITIONER: Douglas B. Payne, New York, New
2 York.
3
4 FOR RESPONDENT: Michael F. Hertz, Acting Assistant
5 Attorney General; Douglas E.
6 Ginsburg, Senior Litigation Counsel;
7 Lyle D. Jentzer, Senior Litigation
8 Counsel, Office of Immigration
9 Litigation, United States Department
10 of Justice, Washington, D.C.
11
12 UPON DUE CONSIDERATION of this petition for review of a
13 Board of Immigration Appeals (“BIA”) decision, it is hereby
14 ORDERED, ADJUDGED, AND DECREED, that the petition for review
15 is DENIED.
16 Dian Wei Lin, a native and citizen of China, seeks
17 review of a November 7, 2007, BIA order affirming the
18 February 28, 2007, decision of Immigration Judge Sandy K.
19 Hom, which denied his motion to reopen. In re Dian Wei Lin,
20 No. A073 134 465 (B.I.A. Nov. 7, 2007), aff’g No. A073 134
21 465 (Immig. Ct. N.Y. City Feb. 28, 2007). Lin’s motion to
22 reopen was based on his claim that he fears persecution on
23 account of the birth of his U.S. citizen children in
24 violation of China’s family planning policy. For largely
25 the same reasons as this Court set forth in Jian Hui Shao v.
26 Mukasey, 546 F.3d 138 (2d Cir. 2008), we find no error in
27 the agency’s denial of Lin’s motion to reopen. See id. at
28 168-72.
08232010-24 2
1 As the government contends, Lin’s arguments concerning
2 the IJ’s underlying in absentia exclusion order are
3 unavailing. To the extent Lin argues that he was not
4 required to seek rescission in order to pursue reopening,
5 the BIA’s decision is not to the contrary; indeed, it
6 explicitly held that rescission was not required. See
7 Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006)
8 (finding that a motion that seeks rescission of an in
9 absentia order is treated as distinct from a motion to
10 reopen proceedings based on new evidence); see also Matter
11 of A-N- & R-M-N-, 22 I & N Dec. 953, 956 (B.I.A. 1999)
12 (holding that a movant need not show reasonable cause for
13 his failure to appear at a hearing in order to reopen his
14 immigration proceedings if the basis of the movant’s motion
15 is not that the IJ erred in ordering him excluded in
16 absentia). To the extent Lin argues that the BIA failed to
17 consider whether he received proper notice of the
18 consequences of failing to appear, it was under no
19 obligation to do so because Lin never suggested before the
20 IJ that he did not receive proper notice.
21 For the foregoing reasons, this petition for review is
22 DENIED. As we have completed our review, any stay of
23 removal that the Court previously granted in this petition
08232010-24 3
1 is VACATED, and any pending motion for a stay of removal in
2 this petition is DISMISSED as moot. Any pending request for
3 oral argument in this petition is DENIED in accordance with
4 Federal Rule of Appellate Procedure 34(a)(2), and Second
5 Circuit Local Rule 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
8
08232010-24 4