Filed: Jul. 20, 2010
Latest Update: Feb. 21, 2020
Summary: 09-3163-ag Lin v. Holder BIA A072 473 979 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 “SUM
Summary: 09-3163-ag Lin v. Holder BIA A072 473 979 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 “SUMM..
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09-3163-ag
Lin v. Holder
BIA
A072 473 979
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 20 th day of July, two thousand ten.
5
6 PRESENT:
7 REENA RAGGI,
8 RICHARD C. WESLEY,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _________________________________________
12
13 YI QUO LIN, a.k.a. ZI GUO LIN,
14 a.k.a. YI GUO LIN,
15 Petitioner,
16
17 v. 09-3163-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _________________________________________
23
24 FOR PETITIONER: Joe Zhenghong Zhou, Flushing,
25 New York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; John C. Cunningham, Senior
29 Litigation Counsel; Claire L.
30 Workman, Trial Attorney, Office of
31 Immigration Litigation, United
32 States Department of Justice,
33 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
4 is DENIED.
5 Petitioner Yi Quo Lin, a native and citizen of the
6 People’s Republic of China, seeks review of the June 29,
7 2009, order of the BIA denying his motion to reopen. In re
8 Lin, No. A072 473 979 (B.I.A. June 29, 2009). We review the
9 BIA’s denial of a motion to reopen for abuse of discretion.
10 See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). We
11 assume the parties’ familiarity with the underlying facts
12 and procedural history of the case.
13 A motion to reopen must generally be filed no later
14 than 90 days after the date on which the final
15 administrative decision was rendered in the proceedings
16 sought to be reopened and only one such motion may be filed.
17 8 C.F.R. § 1003.2(c)(2). There is no dispute that Lin’s
18 third motion to reopen, filed in December 2008, was both
19 numerically barred and untimely. See
id.
20 The BIA did not abuse its discretion in declining to
21 equitably toll the time period for Lin to file his motion to
22 reopen because he failed to demonstrate that he exercised
23 due diligence in pursuing reopening of his removal
2
1 proceedings. See Cekic v. INS, 435 F.3d 167, 170 (2d Cir.
2 2006); see also Rashid v. Mukasey,
533 F.3d 127, 131 (2d
3 Cir. 2008). In fact, Lin does not claim to have taken any
4 action in his removal proceedings for more than four years
5 between the BIA’s June 2001 denial of his first motion to
6 reopen and April 2006, when he contacted his current
7 counsel. See Jian Hua Wang v. BIA,
508 F.3d 710, 715 (2d
8 Cir. 2007).
9 Although Lin expresses his claim as a violation of his
10 due process rights, we note that he has no due process right
11 in seeking a discretionary grant of a motion to reopen. Cf.
12 Yuen Jin v. Mukasey,
538 F.3d 143, 156-57 (2d Cir. 2008)
13 (holding that “an alien who has already filed one asylum
14 application, been adjudicated removable and ordered
15 deported, and who has nevertheless remained in the country
16 illegally for several years, does not have a liberty or
17 property interest in a discretionary grant of asylum”); see
18 also Gomez-Palacios v. Holder,
560 F.3d 354, 361 n.2 (5th
19 Cir. 2009); Iglesias v. Mukasey,
540 F.3d 528, 531 (7th Cir.
20 2008). Regardless, Lin has filed and had adjudicated an
21 asylum application and three motions to reopen, two of which
22 raised his ineffective assistance of counsel claim, and has
23 thus received ample process. See Yuen
Jin, 538 F.3d at 157.
3
1 Finally, because Lin does not challenge the BIA’s
2 findings that: (1) he failed to offer new evidence
3 supporting his claim that his wife underwent a forced
4 sterilization; (2) he did not establish changed country
5 conditions in China; (3) it does not have jurisdiction over
6 his pending application for adjustment of status; and (4) he
7 failed to show that sua sponte reopening of his proceedings
8 was warranted, we do not address those portions of the BIA’s
9 opinion.
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of
12 removal that the Court previously granted in this petition
13 is VACATED, and any pending motion for a stay of removal in
14 this petition is DISMISSED as moot. Any pending request for
15 oral argument in this petition is DENIED in accordance with
16 Federal Rule of Appellate Procedure 34(a)(2), and Second
17 Circuit Local Rule 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
21
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