19-1856 Lin v. Garland BIA A079 141 366

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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 29th day of September, two thousand twenty- 5 one. 6 7 PRESENT: 8 GERARD E. LYNCH, 9 DENNY CHIN, 10 WILLIAM J. NARDINI, 11 Circuit Judges. 12 _____________________________________ 13 14 BAI XIANG LIN, 15 Petitioner, 16 17 v. 19-1856 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Margaret W. Wong, Esq., Margaret 25 W. Wong & Assoc., LLC, Cleveland, 26 OH. 27 28 FOR RESPONDENT: Joseph H. Hunt, Assistant 29 Attorney General; Cindy S. 30 Ferrier, Assistant Director; 1 Tracie N. Jones, Trial Attorney, 2 Office of Immigration Litigation, 3 United States Department of 4 Justice, Washington, DC. 5 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 GRANTED.

10 Petitioner Bai Xiang Lin, a native and citizen of the

11 People’s Republic of China, seeks review of a May 31, 2019,

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

13 proceedings. In re Bai Xiang Lin, No. A079 141 366 (B.I.A.

14 May 31, 2019). We assume the parties’ familiarity with the

15 underlying facts and procedural history.

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

17 of discretion. See Jian Hui Shao v. Mukasey,

,

18 168-69, 173 (2d Cir. 2008). It is undisputed that Lin’s 2018

19 motion to reopen was untimely and number barred because it

20 was filed more than eight years after his removal order became

21 final in 2009 and it was his fourth such motion. See 8 U.S.C.

22 § 1229a(c)(7)(A), (C)(i) (providing for one motion to reopen

2 1 within 90 days of removal order);

(c)(2)

2 (same).

3 Lin argued that, despite his untimely and number barred

4 filing, the BIA should have reopened his removal proceedings

5 in view of Pereira v. Sessions,

(2018). Under

6 Pereira, Lin’s deficient notice to appear (“NTA”), which did

7 not specify the date and time of his removal hearing, failed

8 to trigger the “stop-time rule” (8 U.S.C. § 1229b(d)(1)).

9 Accordingly, time continued to accrue towards the ten-year

10 physical presence requirement for cancellation of removal.

11 See 8 U.S.C. § 1229b(b)(1)(A). The BIA concluded that Lin’s

12 defective NTA was perfected when he received a subsequent

13 hearing notice providing the missing information, and the

14 stop-time rule effectively barred the possibility of

15 cancelling Lin’s removal. The Supreme Court has since

16 rejected the BIA’s position, holding that an NTA that fails

17 to specify the date and time of a hearing is not cured for

18 purposes of the stop-time rule by a subsequent hearing notice

19 that provides the missing information. See Niz-Chavez v.

20 Garland,

(2021).

3 1 Although we generally lack jurisdiction to review the

2 BIA’s decision insofar as it declined to reopen proceedings

3 sua sponte, see Ali v. Gonzales,

(2d Cir.

4 2006), we may remand when, as here, the BIA “misperceived the

5 legal background and thought, incorrectly, that a reopening

6 would necessarily fail,” Mahmood v. Holder,

, 469

7 (2d Cir. 2009).

8 For the foregoing reasons, the petition for review is

9 GRANTED and the case is REMANDED to the BIA. All pending

10 motions and applications are DENIED and stays VACATED.

11 FOR THE COURT: 12 Catherine O’Hagan Wolfe, 13 Clerk of Court

4