Filed: Jul. 01, 2015
Latest Update: Mar. 02, 2020
Summary: 14-2756 Lu v. Lynch BIA Van Wyke, IJ A074 324 873 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
Summary: 14-2756 Lu v. Lynch BIA Van Wyke, IJ A074 324 873 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 NOTATI..
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14-2756
Lu v. Lynch
BIA
Van Wyke, IJ
A074 324 873
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 SUMMARYORDER 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 1st day of July, two thousand fifteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DEBRA ANN LIVINGSTON,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 WAN YAN LU,
14 Petitioner,
15
16 v. 14-2756
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.1
22 _____________________________________
23
24 FOR PETITIONER: Joshua Bardavid, New York, New York.
25
1 - Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Loretta E. Lynch is automatically substituted for
former Attorney General Eric H. Holder, Jr.
1 FOR RESPONDENT: Benjamin C. Mizer, Acting Assistant
2 Attorney General; Melissa
3 Neiman-Kelting, Senior Litigation
4 Counsel; Kristofer R. McDonald, Trial
5 Attorney, Office of Immigration
6 Litigation, Civil Division, United
7 States Department of Justice,
8 Washington D.C.
9
10 UPON DUE CONSIDERATION of this petition for review of a
11 Board of Immigration Appeals (“BIA”) decision, it is hereby
12 ORDERED, ADJUDGED, AND DECREED that the petition for review is
13 DENIED in part and in part DISMISSED.
14 Wan Yan Lu, a native and citizen of the People’s Republic
15 of China, seeks review of a July 3, 2014, decision of the BIA,
16 affirming the October 11, 2012, decision of an Immigration Judge
17 (“IJ”), denying his motion to reopen. In re Wan Yan Lu, No.
18 A074 324 873 (B.I.A. Jul. 3, 2014), aff’g No. A074 324 873
19 (Immig. Ct. N.Y. City Oct. 11, 2012). We assume the parties’
20 familiarity with the underlying facts and procedural history
21 in this case.
22 Under the circumstances of this case, we have reviewed the
23 IJ’s decision as supplemented by the BIA. See Yan Chen v.
24 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
25 standards of review are well-established. See 8 U.S.C.
2
1 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
2 Cir. 2009).
3 We review the denial of motions to reopen for abuse of
4 discretion. See Jian Hui Shao v. Mukasey,
546 F.3d 138, 168-69,
5 173 (2d Cir. 2008). A motion to rescind an in absentia removal
6 order is reviewed under the same standard as a motion to reopen.
7 See Alrefae v. Chertoff,
471 F.3d 353, 357 (2d Cir. 2006).
8 While a motion to rescind based on a lack of notice may be filed
9 at any time, a motion based on “exceptional circumstances” must
10 be filed within 180 days of a removal order. 8 U.S.C.
11 § 1229a(b)(5)(C)(i), (ii). Exceptional circumstances are
12 defined as “circumstances (such as battery or extreme cruelty
13 to the alien or any child or parent of the alien, serious illness
14 of the alien, or serious illness or death of the spouse, child,
15 or parent of the alien, but not including less compelling
16 circumstances) beyond the control of the alien.” 8 U.S.C.
17 § 1229a(e)(1).
18 Here, Lu does not dispute that he received notice of his
19 removal hearing and that his motion to rescind was filed more
20 than 11 years after the 180-day deadline. Instead, he
21 challenges the agency’s determination that he did not exercise
3
1 due diligence such that tolling of the deadline was warranted.
2 The agency did not abuse its discretion in determining that,
3 by waiting more than 11 years to seek reopening, Lu did not
4 demonstrate due diligence. See Jian Hua Wang v. BIA, 508 F.3d
5 710, 715-16 (2d Cir. 2007) (per curiam) (finding no abuse of
6 discretion where the BIA held that a delay of five months between
7 filing a Lozada complaint and filing a motion to reopen
8 constituted a lack of due diligence); Rashid v. Mukasey, 533
9 F.3d 127, 132 (2d Cir. 2008) (movant lacked due diligence when
10 there was a 14 month delay between becoming “dissatisfied” with
11 his attorney and consulting a different attorney). Moreover,
12 a movant is required to demonstrate “due diligence” in pursuing
13 a claim “during the entire period he . . . seeks to toll.”
14
Rashid, 533 F.3d at 132. Lu’s vague statement in his affidavit
15 that he “went to other attorneys” is hardly sufficient to show,
16 as he argues, that the agency erred in not considering his
17 “unbroken efforts” to seek alternative counsel. Indeed, he
18 apparently only moved to rescind his in absentia order after
19 a friend urged him to seek counsel.
20 We generally lack jurisdiction to review the agency’s
21 denial of a motion to reopen pursuant to its sua sponte
22 authority. Ali v. Gonzales,
448 F.3d 515, 518 (2d Cir. 2006)
4
1 (per curiam). However, we may remand for the agency to
2 reconsider a decision declining to sua sponte reopen if the
3 agency misperceived the law, for example, by erroneously
4 concluding that an application for relief “would necessarily
5 fail.” Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009).
6 Lu argues that the BIA failed to consider certain discretionary
7 factors in declining to exercise its sua sponte authority to
8 reopen. However, the BIA’s failure to explicitly address these
9 discretionary factors was not a misperception of law or an
10 erroneous conclusion about Lu’s eligibility for some form of
11 relief. The agency’s decision therefore does not fall within
12 the ambit of Mahmood. Accordingly, we lack jurisdiction over
13 this issue, and the petition for review is dismissed to this
14 extent. See id;
Ali, 448 F.3d at 517.
15 For the foregoing reasons, the petition for review is
16 DENIED in part and in part DISMISSED. As we have completed our
17 review, any stay of removal that the Court previously granted
18 in this petition is VACATED, and any pending motion for a stay
19 of removal in this petition is DISMISSED as moot. Any pending
20 request for oral argument in this petition is DENIED in
21
5
1 accordance with Federal Rule of Appellate Procedure 34(a)(2),
2 and Second Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
6
