Filed: Jul. 25, 2016
Latest Update: Mar. 03, 2020
Summary: 15-632 Chen v. Lynch BIA A089 920 857 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
Summary: 15-632 Chen v. Lynch BIA A089 920 857 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 ..
More
15-632
Chen v. Lynch
BIA
A089 920 857
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 25th day of July, two thousand sixteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 MIN JUN CHEN,
14 Petitioner,
15
16 v. 15-632
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Norman Kwai Wing Wong, New York,
24 New York.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; John W.
28 Blakeley, Assistant Director; W.
29 Daniel Shieh, Trial Attorney, Office
30 of Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
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 is
4 DENIED.
5 Petitioner Min Jun Chen, a native and citizen of the
6 People’s Republic of China, seeks review of a February 13, 2015,
7 decision of the BIA denying his motion to reconsider. In re
8 Min Jun Chen, No. A089 920 857 (B.I.A. Feb. 13, 2015). We assume
9 the parties’ familiarity with the underlying facts and
10 procedural history in this case.
11 As an initial matter, because Chen has timely petitioned
12 for review of the denial of a motion to reconsider, but not from
13 the underlying decision for which reconsideration is sought,
14 we review only the denial of his motion to reconsider. See Ke
15 Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-90 (2d Cir.
16 2001). We review the denial of a motion to reconsider for abuse
17 of discretion. See Jian Hui Shao v. Mukasey,
546 F.3d 138, 173
18 (2d Cir. 2008).
19 The BIA did not abuse its discretion in concluding that Chen
20 failed to identify any error of law or fact in its decision
21 denying his motion to reopen. See 8 U.S.C. § 1229a(c)(6)(C);
2
1 8 C.F.R. § 1003.2(b)(1); see also Jian Hui Shao, 546 F.3d at
2 173. As the BIA determined, Chen was ineligible for a
3 provisional unlawful presence waiver because he is subject to
4 a final order of removal, see 8 C.F.R. § 212.7(e)(4)(vi), and
5 he is ineligible to adjust status given his unlawful presence,
6 see 8 U.S.C. § 1255(a). Accordingly, the BIA did not err in
7 declining to reopen Chen’s proceedings. See In re
8 Velarde-Pacheco, 23 I. & N. Dec. 253, 257 (B.I.A. 2002)
9 (providing that motions to reopen may be denied if it is
10 “determine[d] that a respondent’s visa petition is frivolous
11 or that adjustment would be denied in any event”).
12 Chen argues that the BIA’s decision declining to reopen his
13 proceedings violates his rights to equal protection. He notes
14 that the BIA grants reopening to admissible aliens who are
15 eligible to adjust status pending adjudication of their
16 applications to adjust status, and that he is likewise eligible
17 to adjust status based on his marriage to a U.S. citizen
18 (although he must first seek a waiver of his inadmissibility
19 caused by his unlawful entry and apply for adjustment from
20 abroad).
3
1 “To successfully assert an equal protection challenge,
2 petitioners must first establish that the two classes at issue
3 are similarly situated. ‘[T]he government can treat persons
4 differently if they are not similarly situated.’” Yuen Jin v.
5 Mukasey, 538 F.3d 143, 158 (2d Cir. 2008) (quoting
6 Jankowski-Burczyk v. INS,
291 F.3d 172, 176 (2d Cir. 2002)).
7 The groups Chen discusses are not similarly situated. One
8 group consists of aliens who were lawfully admitted to the
9 United States and thus are eligible to adjust to lawful
10 permanent resident (“LPR”) status while remaining in the
11 country. The other group consists of aliens who entered the
12 United States unlawfully and thus are not eligible to adjust
13 to LPR status unless they are granted a discretionary waiver
14 of inadmissibility and travel abroad for consular processing.
15 See
id. (“Aliens who disregard a final removal order and remain
16 in the country illegally are not similarly situated to aliens
17 who have complied with a final order but subsequently reenter
18 the United States and try to seek relief.”); cf.
19
Jankowski-Burczyk, 291 F.3d at 178 (“[S]ince the INA creates
20 separate classifications for LPRs and non-LPRs, and treats each
21 class differently throughout, LPRs and non-LPRs are not
4
1 similarly situated, and different treatment of them by Congress
2 does not violate the equal protection component of the Due
3 Process Clause.”). Accordingly, Chen’s equal protection claim
4 fails.
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of removal
7 that the Court previously granted in this petition is VACATED,
8 and any pending motion for a stay of removal in this petition
9 is DENIED as moot. Any pending request for oral argument in
10 this petition is DENIED in accordance with Federal Rule of
11 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
12 34.1(b).
13 FOR THE COURT:
14 Catherine O=Hagan Wolfe, Clerk
5
