Filed: Sep. 17, 2013
Latest Update: Feb. 12, 2020
Summary: 12-1979 Lin v. Holder BIA McManus, IJ A070 901 983 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 NOTA
Summary: 12-1979 Lin v. Holder BIA McManus, IJ A070 901 983 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 NOTAT..
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12-1979
Lin v. Holder
BIA
McManus, IJ
A070 901 983
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 17th day of September, two thousand thirteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 RICHARD C. WESLEY,
10 DENNY CHIN,
11 Circuit Judges.
12 _____________________________________
13
14 CHUN QIANG LIN,
15 Petitioner,
16
17 v. 12-1979
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Adedayo O. Idowu, New York, New
25 York.
26
27 FOR RESPONDENT: Stuart F. Delery, Principal Deputy
28 Assistant Attorney General; Richard
29 M. Evans, Assistant Director; Ann
1 Carroll Varnon, Trial Attorney,
2 Office of Immigration Litigation,
3 United States Department of Justice,
4 Washington, D.C.
5 UPON DUE CONSIDERATION of this petition for review of a
6 decision of the Board of Immigration Appeals (“BIA”), it is
7 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
8 review is DENIED.
9 Chun Qiang Lin, a native and citizen of the People’s
10 Republic of China, seeks review of an April 13, 2012,
11 decision of the BIA affirming the May 24, 2010, decision of
12 Immigration Judge (“IJ”) Margaret McManus, denying his
13 motion to reconsider and reopen. In re Chun Qiang Lin, No.
14 A070 901 983 (B.I.A. Apr. 13, 2012), aff’g No. A070 901 983
15 (Immig. Ct. N.Y. City May 24, 2010). We assume the parties’
16 familiarity with the underlying facts and procedural history
17 of this case.
18 Under the circumstances of this case, we have reviewed
19 both the IJ’s and the BIA’s opinions “for the sake of
20 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
21 2008). Our review is limited to the agency’s denial of:
22 (1) Lin’s motion to reconsider the denial of his motion to
23 rescind his in absentia removal order; and (2) Lin’s motion
24 to reopen to apply for asylum based on a new claim. See Ke
2
1 Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-90 (2d
2 Cir. 2001). The applicable standards of review are well-
3 established. See Jian Hui Shao v. Mukasey,
546 F.3d 138,
4 168-69, 173 (2d Cir. 2008); Salimatou Bah v. Mukasey, 529
5 F.3d 99, 110-11 (2d Cir. 2008).
6 A motion to reconsider must specify errors of fact or
7 law in the agency’s prior decision. See 8 U.S.C.
8 § 1229a(c)(6)(C); 8 C.F.R. § 1003.23(b)(2); see also Ke Zhen
9
Zhao, 265 F.3d at 90. The agency did not abuse its
10 discretion in finding no error in the IJ’s underlying
11 decision denying Lin’s motion to rescind his in absentia
12 removal order.
13 An order of removal entered in absentia may be
14 rescinded only: (1) upon a motion filed at any time if the
15 alien demonstrates that he did not receive notice of his
16 hearing; or (2) upon a motion filed within 180 days after
17 the date of the order of removal if the alien demonstrates
18 that the failure to appear was because of exceptional
19 circumstances. 8 U.S.C. § 1229a(b)(5)(C); 8 C.F.R.
20 § 1003.23(b)(4)(ii). The agency did not err in concluding
21 that Lin had received notice in accordance with the relevant
22 statutory and regulatory provisions because he conceded that
3
1 written notice of his hearing was provided to his attorney
2 of record while he and his attorney were in Immigration
3 Court. See 8 U.S.C. § 1229(a)(2)(A); 8 C.F.R.
4 § 1003.23(b)(4)(ii); see also Song Jin Wu v. INS, 436 F.3d
5 157, 162 (2d Cir. 2006).
6 Insofar as Lin’s motion to rescind was based on a claim
7 of exceptional circumstances, namely the ineffective
8 assistance of his former counsel, it was undisputably
9 untimely as it was filed more that ten years after the IJ’s
10 1999 in absentia order of removal. See 8 U.S.C.
11 § 1229a(b)(5)(C); 8 C.F.R. § 1003.23(b)(4)(ii). In order to
12 warrant equitable tolling of the applicable time limitation
13 based on ineffective assistance of counsel, an alien is
14 required to demonstrate “due diligence” in pursuing his
15 claim during “both the period of time before the ineffective
16 assistance of counsel was or should have been discovered and
17 the period from that point until the motion to reopen is
18 filed.” Rashid v. Mukasey,
533 F.3d 127, 131 (2d Cir.
19 2008); see also Cekic v. INS,
435 F.3d 167, 170 (2d Cir.
20 2006). The agency did not err in finding that Lin failed to
21 demonstrate due diligence because the record indicates that
22 although he knew of the basis for his claim by at least May
23 2007, he did not file a motion to reopen based on that claim
4
1 until December 2009 or provide any details as to the actions
2 he took in his case for those two intervening years. See
3 Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007);
4
Cekic, 435 F.3d at 171.
5 Finally, we do not consider the agency’s denial of
6 Lin’s motion to reopen because his contention that he has a
7 well-founded fear of persecution based on his violation of
8 China’s family planning policy does not challenge the bases
9 for the agency’s denial of his untimely motion to reopen.
10 See Yueqing Zhang v. Gonzales,
426 F.3d 540, 541 n.1, 545
11 n.7 (2d Cir. 2005).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of
14 removal that the Court previously granted in this petition
15 is VACATED, and any pending motion for a stay of removal in
16 this petition is DISMISSED as moot. Any pending request for
17 oral argument in this petition is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2), and Second
19 Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
5
