19-884 Lin v. Wilkinson BIA A073 036 406 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 TO 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 25th day of February, two thousand twenty-one. 5 6 PRESENT: 7 DENNIS JACOBS, 8 GUIDO CALABRESI, 9 JOSÉ A. CABRANES, 10 Circuit Judges. 11 _____________________________________ 12 13 CHANG YAN LIN, 14 Petitioner, 15 16 v. 19-884 17 NAC 18 ROBERT M. WILKINSON, ACTING 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 1 21 _____________________________________ 22 23 FOR PETITIONER: Vlad Kuzmin, Esq., New York, NY. 24 25 FOR RESPONDENT: [VACANT], Acting Assistant 26 Attorney General; Leslie McKay, 1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Robert M. Wilkinson is automatically substituted for former Acting Attorney General Jeffrey A. Rosen as Respondent. 1 Senior Litigation Counsel, 2 Madeline Henley, Attorney; Office 3 of Immigration Litigation, United 4 States Department of Justice, 5 Washington, DC.

6 UPON DUE CONSIDERATION of this petition for review of a

7 Board of Immigration Appeals (“BIA”) decision, it is hereby

8 ORDERED, ADJUDGED, AND DECREED that the petition for review

9 is DISMISSED.

10 Petitioner Chang Yan Lin, a native and citizen of the

11 People’s Republic of China, seeks review of a March 6, 2019,

12 decision of the BIA denying his third motion to reopen his

13 deportation proceedings. In re Chang Yan Lin, No. A073 036

14 406 (B.I.A. March 6, 2019). We assume the parties’

15 familiarity with the underlying facts and procedural history.

16 We review the BIA’s denial of a motion to reopen for

17 abuse of discretion. Ali v. Gonzales,

(2d

18 Cir. 2006). The BIA did not abuse its discretion in denying

19 Lin’s motion to reopen. It is undisputed that Lin’s 2018

20 motion was untimely and number barred because the BIA affirmed

21 Lin’s deportation order in June 2002 and he filed two prior

22 motions to reopen. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); see

23 also

(c)(2). Lin’s approved visa petition

24 and purported eligibility to adjust status do not implicate 2 1 an exception to the time and number limitations. See Matter

2 of Yauri,

(BIA 2009) (holding “that

3 untimely motions to reopen to pursue an application for

4 adjustment of status . . . do not fall within any of the

5 statutory or regulatory exceptions to the time limits for

6 motions to reopen before the Board”). Accordingly, the only

7 remaining basis for reopening was the BIA’s authority to

8 reopen sua sponte despite the time and number limitations.

9 See

(a); Mahmood v. Holder,

,

10 469 (2d Cir. 2009) (“Because Mahmood’s untimely motion to

11 reopen was not excused by any regulatory exception, his motion

12 to reopen could only be considered upon exercise of the

13 Agency’s sua sponte authority”). However, the BIA’s decision

14 not to exercise that authority is “entirely discretionary”

15 and beyond the scope of our review. Ali,

.

16 Lin’s res judicata arguments are not properly before us

17 because he did not assert a res judicata claim before the

18 agency. See Lin Zhong v. U.S. Dep’t of Justice,

(2d Cir. 2007) (generally requiring issues to be

20 raised before the BIA); see also Totalplan Corp. of Am. v.

21 Colborne,

, 832 (2d Cir. 1994) (“Because res

3 1 judicata is an affirmative defense, it should have been

2 asserted as soon as it was available . . . Appellees’ failure

3 to raise res judicata until appeal constitutes waiver of that

4 defense.”).

5 For the foregoing reasons, the petition for review is

6 DISMISSED. All pending motions and applications are DENIED

7 and stays VACATED.

8 FOR THE COURT: 9 Catherine O’Hagan Wolfe, 10 Clerk of Court

4