19-3062
Lin v. Garland
BIA
Poczter, IJ
A076 683 998
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 TO 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 Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 9th day of August, two thousand twenty-one.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 ROBERT D. SACK,
9 RAYMOND J. LOHIER, JR.,
10
11 Circuit Judges.
12 _____________________________________
13
14 LUNG LIN, AKA RONG LIN,
15 Petitioner,
16
17 v. 19-3062
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Jean Wang, Wang Law Office, PLLC,
25 Flushing, NY.
26
27 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
28 General; Stephen J. Flynn ,
1 Assistant Director; Kathryn
2 McKinney, Attorney, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is GRANTED.
10 Petitioner Lung Lin, a native and citizen of China, seeks
11 review of a September 16, 2019, decision of the BIA affirming
12 a September 28, 2018, decision of an Immigration Judge (“IJ”)
13 denying his motion to reopen. In re Lung Lin a.k.a. Rong
14 Lin, No. A076 683 998 (B.I.A. Sept. 16, 2019), aff’g No. A076
15 683 998 (Immig. Ct. NY City Sept. 28, 2018). We assume the
16 parties’ familiarity with the underlying facts and procedural
17 history.
18 We review the denial of a motion to reopen for abuse of
19 discretion. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-
20 69 (2d Cir. 2008). Contrary to Lin’s assertion, the agency
21 did not ignore his argument for equitable tolling and sua
22 sponte reopening; it assumed arguendo that Lin’s motion was
23 timely and not number-barred and considered the merits. The
24 agency may deny a motion to reopen if the movant fails to
2
1 establish his prima facie eligibility for the underlying
2 relief sought. See INS v. Abudu, 485 U.S. 94, 104 (1988).
3 Lin argued that he established his prima facie
4 eligibility for cancellation of removal given the decision in
5 Pereira v. Sessions, 138 S. Ct. 2105 (2018). Under Pereira,
6 Lin’s notice to appear (“NTA”), which did not contain a
7 hearing date or time, was deficient and did not stop time for
8 calculating the physical presence required for cancellation
9 of removal. The agency concluded that his defective NTA was
10 perfected when he received a hearing notice providing the
11 date and time of his hearing. The Supreme Court has since
12 rejected the agency’s position, holding that an NTA that does
13 not contain a hearing date and time as required by Pereira is
14 not cured for purposes of the stop-time rule by a subsequent
15 hearing notice that provides the missing information. See
16 Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). Accordingly,
17 the agency erred in its conclusion that Lin failed to
18 establish his prima facie eligibility for cancellation of
19 removal.
20 For the foregoing reasons, the petition for review is
21 GRANTED, the BIA’s decision is VACATED, and the case is
3
1 REMANDED for further proceedings. All pending motions and
2 applications are DENIED and stays VACATED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe
5 Clerk of Court
4