Xue Hui Lin v. Holder

U.S. Court of Appeals for the Second Circuit
Xue Hui Lin v. Holder, 380 F. App'x 28 (2d Cir. 2010)

Xue Hui Lin v. Holder

Opinion

SUMMARY ORDER

Xue Hui Lin and Yan Hong Lin, natives and citizens of China, seek review of the September 16, 2009, order of the BIA affirming the October 17, 2007, decision of Immigration Judge (“IJ”) Barbara A. Nelson denying their motion to reopen, reconsider, and reinstate. 1 In re Xue Hui Lin, et al., Nos. A073 540 565/A070 868 821 (B.I.A. Sept. 16, 2009), aff'g Nos. A073 540 565/A070 868 821 (Immig. Ct. N.Y. City *30 Oct. 17, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

1. Scope of Review

As an initial matter, the arguments advanced in Lin’s brief largely challenge the IJ’s underlying denial of his application for asylum. However, we are without jurisdiction to consider Lin’s challenge to the IJ’s March 2006 decision. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-90 (2d Cir. 2001). Instead, we limit our review to the BIA’s September 2009 decision affirming the IJ’s October 2007 decision. Moreover, we lack jurisdiction to review Lin’s challenge to the BIA’s decision to affirm without opinion the IJ’s decision. See Kambolli v. Gonzales, 449 F.3d 454, 463 (2d Cir. 2006) (finding that this Court “lack[s] jurisdiction to review decisions by BIA members to affirm IJ decisions without opinion”).

II.Motion to Reopen and Reconsider

Under the circumstances of this case, we review the IJ’s decision alone. 2 See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). We review the agency’s denial of a motion to reopen and reconsider for abuse of discretion. See Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006); Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam).

In denying Lin’s motion to reopen and reconsider, the IJ found that it was untimely filed because “the Court’s March 22, 2006 decision [was] the final administrative order.” See 8 C.F.R. § 1003.23(b) (providing that a motion to reopen before an IJ must be filed no later than 90 days after the date on which the final administrative decision was rendered and that a motion to reconsider must be filed no later than 30 days thereafter). Although Lin argues that in its July 2007 decision, the BIA instructed the IJ to accept a motion to reopen regardless of its timeliness, he misconstrues the BIA’s decision. In dismissing Lin’s merits appeal as untimely, the BIA instructed Lin that if he sought to challenge its finding that his appeal was untimely, he should file a motion to reconsider with the BIA. It further stated that if he sought to challenge “any other” finding, he should file a motion to reopen with the IJ. These instructions were not a “signal” for the IJ to consider any motion, regardless of its timeliness. Rather, they simply informed Lin which tribunal had jurisdiction to consider the various arguments he might assert. Thus, the IJ did not err in denying Lin’s motion to reopen and reconsider as untimely. 8 C.F.R. § 1003.23(b); see Jin Ming Liu, 439 F.3d at 111; Kaur, 413 F.3d at 233.

III.Motion to Reissue

Finally, contrary to Lin’s argument that the IJ abused her discretion in denying, as untimely, his motion to reissue, that was not the basis for the IJ’s denial of his motion to reissue. Rather, the IJ declined to reissue her previous decision because Lin had advanced no reason for her to do so. In any event, we have found that as long as the IJ’s decision is properly served, the time for appeal begins to run and the agency does not abuse its discretion in denying a motion to reissue the IJ’s prior decision. See Ping Chen v. U.S. Att’y Gen., 502 F.3d 73, 76-77 (2d Cir. 2007).

For the foregoing reasons, the petition for review is DENIED. As we have corn- *31 pleted 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).

1

. Xue Hui Lin's asylum application included his wife, Yan Hong Lin, as a derivative applicant. The IJ’s decision primarily discussed Xue Hui Lin's eligibility for asylum and relal-ed relief. Therefore, for the sake of clarity, this order refers only to Xue Hui Lin as “Lin” throughout.

2

. In liis brief before us, Lin does not challenge: (1) the IJ’s determination that he failed to present new and previously unavailable evidence regarding the IJ's adverse credibility determination; and (2) the IJ's finding that she lacked jurisdiction to review the BIA's dismissal of his merits appeal as untimely filed.

Reference

Full Case Name
XUE HUI LIN, Yan Hong Lin, Petitioners, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent
Cited By
2 cases
Status
Unpublished