Filed: Oct. 21, 2013
Latest Update: Mar. 28, 2017
Summary: 11-3771 Lin v. Holder BIA A072 782 548 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 “SUMMAR
Summary: 11-3771 Lin v. Holder BIA A072 782 548 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..
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11-3771
Lin v. Holder
BIA
A072 782 548
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 21st day of October, two thousand thirteen.
PRESENT:
JON O. NEWMAN,
REENA RAGGI,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
FENG LIN,
Petitioner,
v. 11-3771
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Chunyu Jean Wang, Wang Law Office,
Flushing, New York.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Luis E. Perez,
Senior Litigation Counsel; Jane T.
Schaffner, Trial Attorney, Office of
Immigration Litigation, Civil
Division, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Petitioner Feng Lin, a native and citizen of the People’s
Republic of China, seeks review of a September 7, 2011, order
of the BIA denying his motion to reopen. In re Feng Lin, No.
A072 782 548 (B.I.A. Sep. 7, 2011). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
Cir. 2006) (per curiam).
There is no dispute that Lin’s motion, filed more than 15
years after the BIA’s final order, was untimely. See 8 U.S.C.
§ 1229a(c)(7)(C)(i) (setting 90-day deadline for motions to
reopen). Lin argues that the BIA abused its discretion in
denying his motion to reopen based on ineffective assistance
of counsel, because it did not fully address whether his
former counsel was ineffective or whether he was prejudiced by
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counsel’s conduct. See Rabiu v. INS, 41 F.3d 879, 882 (2d
Cir. 1994). However, in order to warrant equitable tolling of
the statutory deadline on motions to reopen, such that his
motion may be deemed timely filed, Lin was required to
demonstrate that he exercised due diligence in vindicating his
rights. See Cekic v. INS,
435 F.3d 167, 171 (2d Cir. 2006).
Here, the BIA did not abuse its discretion in determining
that Lin failed to exercise due diligence. While Lin pursued
other relief after 1997, apart from contacting his lawyer
once, he did not show that he tried to learn the outcome of
his appeal between 1995 and 2006, when he hired new counsel.
Moreover, he did not explain why his newly retained counsel
did not file a motion to reopen until 2011. See Rashid v.
Mukasey, 533 F.3d 127, 132 (2d Cir. 2008) (holding that
petitioner failed to exercise due diligence when, after he
knew or should have known of his initial counsel’s alleged
ineffective assistance, he waited fourteen months to pursue
his case); Jian Hua Wang v. BIA,
508 F.3d 710, 715 (2d Cir.
2007) (per curiam) (alien did not demonstrate due diligence
when his attorney waited several months after the receipt of
documents through FOIA to file the motion to reopen, years
already “having passed after the normal 90-day time limit to
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reopen had expired”). Because the BIA reasonably concluded
that Lin did not establish due diligence, it was not required
to address whether Lin’s former counsel’s conduct was
competent or prejudiced Lin.
Lin additionally argues that the BIA should have reopened
his proceedings and reissued its 1995 decision, because he did
not receive a copy of that decision, which was served on his
attorney. The BIA stated that it would not reopen Lin’s
proceedings because service on Lin’s attorney was proper.
While the BIA incorrectly stated in a footnote that Lin did
not request reissuance, we conclude that remanding for this
reason would be futile, both because service complied with
governing regulations and because the BIA’s decision not to
reopen the proceedings would justify declining to reissue the
decision. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
315, 339 (2d Cir. 2006).
When an alien requests reissuance based on a claim that
he did not receive proper notice of the BIA’s decision, the
operative question is whether the BIA sent the notice in
conformity with normal office procedures. See Ping Chen v.
U.S. Att’y Gen., 502 F.3d 73, 75 (2d Cir. 2007) (per curiam).
The regulations in place in 1995 required that the BIA serve
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a copy of its decisions “upon the alien or party affected,”
and provided that such service shall be made on “the attorney
or representative of record, or the person himself if
unrepresented.” 8 C.F.R. §§ 3.1(f), 292.5(a) (1995).
Accordingly, the BIA properly served its 1995 decision by
serving a copy on Lin’s attorney,1 and thus the time for Lin
to file a motion to reopen began to run. See Ping Chen, 502
F.3d at 76-77 (“Once the BIA has performed its duty of serving
the order, the time for appeal and motions to reopen begins to
run, even if the order miscarries in the mail or the alien
does not receive it for some other reason that is not the
BIA’s fault.”).
Lin also argues that the BIA abused its discretion in
summarily rejecting his argument relating to adjustment of
status on the ground that the BIA did not have jurisdiction to
adjudicate adjustment of status. However, this argument
1
Lin argues that his case should be remanded based
on this Court’s non-precedential decision in Xing An Dong
v. Holder, 420 F. App’x 76 (2d Cir. 2011) (unpublished
summary order). However, Xing An Dong is inapposite. In
that case, we remanded for the BIA to address whether
serving a copy of its decision on an attorney who had
been expelled from practicing before the BIA was proper
service under the regulations. Id. at 78. Here, in
contrast, in 1995, Lin’s attorney, although employed by
the same firm as the attorney at issue in Xing An Dong,
was permitted to practice before the BIA.
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mischaracterizes the BIA’s decision. The BIA properly
concluded that Lin’s motion to reopen was untimely despite his
pending application for adjustment of status, which is not an
exception from the time limitation on motions to reopen. See
Ali, 448 F.3d at 516-17; Matter of Yauri, 25 I. & N. Dec. 103,
105 (B.I.A. 2009). It also declined to reopen his proceedings
sua sponte, but that determination was not based on its
jurisdiction over Lin’s application for adjustment of status,
but on its conclusion that his case did not present
exceptional circumstances. We do not have jurisdiction to
review that “entirely discretionary” conclusion. Ali, 448
F.3d at 518.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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