Filed: Feb. 02, 2011
Latest Update: Feb. 21, 2020
Summary: 08-4937-ag Lin v. Holder BIA Van Wyke, IJ A070 527 735 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
Summary: 08-4937-ag Lin v. Holder BIA Van Wyke, IJ A070 527 735 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 N..
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08-4937-ag
Lin v. Holder
BIA
Van Wyke, IJ
A070 527 735
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 2 nd day of February, two thousand eleven.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _________________________________________
12
13 XIU HUA LIN,
14 Petitioner,
15
16 v. 08-4937-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL * ,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Raymond Lo, Kuzmin & Associates,
24 P.C., New York, New York.
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr. is
substituted for former Attorney General Michael B.
Mukasey as Respondent.
1 FOR RESPONDENT: Tony West, Assistant Attorney
2 General; Michael P. Lindemann,
3 Assistant Director; Mark C. Walters,
4 Senior Litigation Counsel, Office of
5 Immigration Litigation, United
6 States Department of Justice,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED, that the petition for review
12 is DENIED.
13 Xiu Hua Lin, a native and citizen of China, seeks
14 review of a September 8, 2008, order of the BIA vacating the
15 September 14, 2005, decision of Immigration Judge (“IJ”)
16 William Van Wyke, which granted reopening of her removal
17 proceedings and her application for asylum. In re Lin, No.
18 A070 527 735 (B.I.A. Sept. 8, 2008), vacating No. A070 527
19 735 (Immig. Ct. N.Y. City Sept. 14, 2005). We assume the
20 parties’ familiarity with the underlying facts and
21 procedural history in this case.
22 Under the circumstances of this case, we review solely
23 the decision of the BIA. See Yan Chen v. Gonzales, 417 F.3d
24 268, 271 (2d Cir. 2005). The applicable standards of review
25 are well-established. See Salimatou Bah v. Mukasey, 529
26 F.3d 99, 110 (2d Cir. 2008); Shu Wen Sun v. BIA,
510 F.3d
2
1 377, 379 (2d Cir. 2007).
2 The BIA did not err in asserting jurisdiction over the
3 IJ’s September 2003 order granting Lin’s motion to reopen,
4 even though the government failed to directly appeal that
5 order, because the BIA generally does not entertain
6 interlocutory appeals, but rather will review interlocutory
7 decisions on review of the IJ’s final decision. See Matter
8 of Sacco, 15 I. & N. Dec. 109, 110 (BIA 1974); see also
9 Singh-Bhathal v. INS,
170 F.3d 943, 945 (9th Cir. 1999).
10 The BIA thus had jurisdiction to review, on appeal from the
11 subsequent grant of asylum, not only the grant of asylum,
12 but also the IJ’s initial grant of the motion to reopen.
13 The BIA did not abuse its discretion in vacating the
14 grant of reopening, as the motion to reopen was untimely and
15 Lin did not meet her burden of showing a change in country
16 conditions in China, as required to excuse the untimely
17 filing. An alien may file only one claim for asylum, and
18 that application must be filed within one year of arrival in
19 the United States. See 8 U.S.C. §§ 1158(a)(2)(B),(C).
20 There is an exception to the time and numerical bars for
21 asylum applications where an applicant “demonstrates to the
22 satisfaction of the Attorney General either the existence of
3
1 changed circumstances which materially affect the
2 applicant’s eligibility for asylum or extraordinary
3 circumstances relating to the delay in filing an application
4 within the [one-year] period.” 8 U.S.C. § 1158(a)(2)(D).
5 However, § 1158(a)(2)(D) does not apply to applicants, like
6 Lin, who were already subject to a final order of removal.
7 See Yuen Jin v. Mukasey, 538 F.3d 143, 156 (2d. Cir 2008)
8 (upholding BIA’s determination that procedural requirements
9 of motions to reopen applied); Matter of C-W-L-, 24 I. & N.
10 Dec. 346, 349-50 (BIA 2007).
11 The BIA did not err in applying both Matter of C-W-L-
12 and Yuen Jin to Lin’s case. See 8 C.F.R.
13 § 1003.1(d)(3)(ii); see also NLRB v. Coca-Cola Bottling Co.,
14
55 F.3d 74, 78 (2d Cir. 1995). Accordingly, Lin’s motion
15 was required to conform to the requirements of 8 C.F.R.
16 § 1003.2(c), which governs motions to reopen. See Yuen Jin,
17 538 F.3d at 156. Because Lin was filing a motion to reopen
18 after a final order of removal, and that motion was filed
19 more than five years after the final administrative decision
20 was rendered in her case, there is no dispute that it was
21 untimely. See 8 C.F.R. § 1003.2(c)(2). Additionally, the
22 birth of Lin’s children in the United States after her final
4
1 order of removal did not establish changed country
2 conditions “arising in the country of nationality.” Id.;
3 see Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129,
4 130-31 (2d Cir. 2005) (finding that the birth of U.S.
5 citizen children constitutes a change in personal
6 circumstances and not a change in country conditions, and
7 therefore does not establish an exception to the filing
8 deadline for motions to reopen).
9 Lin also argues that the IJ was acting within his sua
10 sponte authority, and that the BIA “disregarded the
11 jurisdictional and discretionary authority” of the IJ by
12 vacating his decision. While 8 C.F.R. § 1003.23(b)(1)
13 grants an IJ the authority to “upon his or her own motion at
14 any time . . . reopen or reconsider any case in which he or
15 she has made a decision,” sua sponte reopening “is not meant
16 to be used as a general cure for filing defects or to
17 otherwise circumvent the regulations,” but rather is limited
18 to “exceptional situations.” Matter of J-J-, 21 I. & N.
19 Dec. 976, 984 (BIA 1997). Moreover, the BIA reviews de novo
20 discretionary decisions of an IJ. See 8 C.F.R.
21 § 1003.1(d)(3)(ii); see also Matter of Martinez, 25 I. & N.
22 Dec. 66, 69, 76-78 (BIA 2009). Thus, in this case, the BIA
5
1 did not err in reviewing de novo the IJ’s discretionary
2 decision to grant reopening. As discussed above, because
3 Lin failed to demonstrate changed country conditions, the
4 BIA’s reversal of reopening was not an abuse of discretion.
5 Lin also argues that “the failure of the Board to
6 review or discuss the [IJ’s] decisions clearly violated
7 [her] due process rights and prior court decisions.”
8 However, “an alien who has already filed one asylum
9 application, been adjudicated removable and ordered
10 deported, and who has nevertheless remained in the country
11 illegally for several years, does not have a liberty or
12 property interest in a discretionary grant of asylum.” Yuen
13 Jin, 538 F.3d at 157. Moreover, even if Lin did have a
14 protectable interest in relief, her due process rights have
15 not been violated, as the BIA did review and discuss the
16 IJ’s findings in its decision. See id.; Wei Guang Wang v.
17 BIA,
437 F.3d 270, 273-74, 275 (2d Cir. 2006).
18 For the foregoing reasons, the petition for review is
19 DENIED. As we have completed our review, any stay of
20 removal that the Court previously granted in this petition
21 is VACATED, and any pending motion for a stay of removal in
22 this petition is DISMISSED as moot. Any pending request for
23 oral argument in this petition is DENIED in accordance with
6
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
7
