Filed: Oct. 23, 2020
Latest Update: Oct. 23, 2020
Summary: 19-85 Lin v. Barr BIA A075 780 271 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 OR
Summary: 19-85 Lin v. Barr BIA A075 780 271 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 ORD..
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19-85
Lin v. Barr
BIA
A075 780 271
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 23rd day of October, two thousand twenty.
5
6 PRESENT:
7 DENNIS JACOBS,
8 ROSEMARY S. POOLER,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 TINGYI LIN, AKA TING JIANG LIN,
14 AKA CADY JIANG,
15 Petitioner,
16
17 v. 19-85
18 NAC
19 WILLIAM P. BARR, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Richard Tarzia, Belle Mead, NJ.
25
26 FOR RESPONDENT: Ethan P. Davis, Acting Assistant
27 Attorney General; Jessica E.
28 Burns, Senior Litigation Counsel;
29 Maarja T. Luhtaru, Trial Attorney,
30 Office of Immigration Litigation,
31 United States Department of
32 Justice, Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Tingyi Lin, a native and citizen of the
6 People’s Republic of China, seeks review of a December 14,
7 2018, decision of the BIA denying her motion to reopen and
8 terminate her removal proceedings. In re Tingyi Lin, No.
9 A075 780 721 (B.I.A. Dec. 14, 2018). We assume the parties’
10 familiarity with the underlying facts and procedural history.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Jian Hui Shao v. Mukasey, 546 F.3d
13 138, 168-69 (2d Cir. 2008). Before the BIA, Lin moved to
14 reopen and terminate her removal proceedings, arguing that
15 the time limit for filing her motion should be excused and
16 that her notice to appear (“NTA”) was insufficient to commence
17 removal proceedings under the Supreme Court’s decision in
18 Pereira v. Sessions,
138 S. Ct. 2105 (2018), because it did
19 not contain a hearing date or time.
20 It is undisputed that Lin’s 2018 motion to reopen was
21 untimely because it was filed more than nine years after her
2
1 removal order became final in 2009. See 8 U.S.C.
2 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Lin argues
3 that the BIA should have excused the time limit given the
4 intervening decision in Pereira, 138 S. Ct. 2105, under which
5 her NTA was insufficient to place her in removal proceedings.
6 Because Lin’s Pereira argument is without merit, as discussed
7 below, the BIA did not err in declining to either excuse the
8 time limitation based on that decision or exercise its
9 authority to reopen sua sponte. See 8 C.F.R. § 1003.2(c)(3)
10 (listing exceptions to the time limitation); Mahmood v.
11 Holder,
570 F.3d 466, 469 (2d Cir. 2009) (noting that an
12 untimely motion may be considered under the agency’s sua
13 sponte authority, we lack jurisdiction to review such
14 decision, but we may remand if the agency misperceived the
15 law).
16 In Pereira, the Supreme Court held that the Immigration
17 and Nationality Act unambiguously requires an NTA to include
18 a hearing time and place to trigger the “stop-time rule,”
138
19 S. Ct. at 2113–20, which cuts off a noncitizen’s accrual of
20 physical presence or residence for the purposes of qualifying
21 for cancellation of removal, see 8 U.S.C. § 1229b(a), (b),
3
1 (d)(1). Lin does not challenge her accrual of physical
2 presence or the application of the stop-time rule, but instead
3 argues that Pereira also invalidates an NTA, like hers, that
4 omitted the hearing information and contends that the NTA was
5 thus insufficient to vest the immigration court with
6 jurisdiction over her removal proceedings. We have rejected
7 this argument, holding that Pereira addresses a narrow
8 question regarding the stop-time rule and does not “void
9 jurisdiction in cases in which an NTA omits a hearing time or
10 place.” Banegas Gomez v. Barr, 922 F.3d 101, 110 (2d Cir.
11 2019) (emphasis in original). As we have noted, the
12 regulation vesting jurisdiction does not require an NTA to
13 specify the time and date of the initial hearing, “at least
14 so long as a notice of hearing specifying this information is
15 later sent to the alien.”
Id. at 112.
16 Although Lin’s 2005 NTA did not specify the date and time
17 of her initial hearing, she unquestionably received notice of
18 her hearings at which she appeared. Therefore, Lin’s
19 argument that her NTA was insufficient to commence removal
20 proceedings is foreclosed by Banegas
Gomez, 922 F.3d at 110,
21 112.
4
1 For the foregoing reasons, the petition for review is
2 DENIED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe,
5 Clerk of Court
5
