Lin v. Atty Gen USA , 127 F. App'x 36 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
3-23-2005
Lin v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1114
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 04-1114
___________
FEI LIN
Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA;
SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY,*
Respondents.
___________
Petition for Review of an Order of the
Board of Immigration Appeals
(No. A73-033-421)
___________
Submitted Under Third Circuit LAR 34.1(a)
March 11, 2005
Before: NYGAARD, McKEE, and RENDELL, Circuit Judges.
(Filed March 23, 2005 )
*.
Caption amended pursuant to Rule 43(c), Fed. R. App. Pro.
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
Petitioner, Fei Lin, seeks judicial review of decisions issued by the Board of
Immigration Appeals on December 13, 2003 and February 13, 2004. We affirm.
I.
Lin, a native and citizen of the People's Republic of China, illegally entered
the United States on or about April 5, 1990. On July 10, 1996, the INS initiated
proceedings against Lin, pursuant to INS §241(a)(1)(B); 8 U.S.C. §1251(a)(1)(B),
alleging that he was deportable as an alien who was present in the United States without
inspection.
In deportation proceedings before the Immigration Judge, Lin requested
asylum, withholding of deportation, and in the alternative voluntary departure. The IJ
granted Lin's request to withdraw his applications for asylum and withholding of
deportation and granted Lin's request for voluntary departure. Lin, however, did not
depart the United States and instead filed a Motion to Reopen his deportation proceedings
to apply for protection under the Convention Against Torture. The INS did not oppose
the motion and the IJ granted it.
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After a hearing on the merits, the IJ found Lin ineligible for CAT
protection, finding that Lin's testimony and evidence were not credible and that
background country information did not show that it was "more likely than not" that he
would be tortured if returned to China. The IJ reinstated Lin's alternate order of
deportation.
Lin appealed the IJ's decision to the Board of Immigration Appeals. In
addition, he requested that the BIA administratively close this case because he allegedly
married Yun Yan Lin. Lin argued that Yun Yan was conditionally granted asylum, and
therefore he should be considered her derivative spouse to such application even though
she cannot petition him until she receives a final grant of asylum. The INS opposed Lin's
request to administratively close his proceedings, asserting that there was no evidence to
support Lin's claim that he was married. Lin moved to supplement the record with a copy
of a document entitled "Praecipe to Enter Default Judgment"1 that he filed against his
"wife," Yun Yan.
The BIA dismissed this appeal based on the reasons stated in Matter of
Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994) (noting that adoption or affirmance of a
decision of an immigration judge, in whole or in part, is "simply a statement that the
1.
The Praecipe does not indicate, as Lin asserts, that the Philadelphia County Court
found that Lin and Yun Yan were married. Instead the record reflects that Lin requested
judgment in his favor confirming that he and Plaintiff, Yun Yan, were lawfully married
on September 18, 2001 and are husband and wife. See A.R. 34-47.
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Board's conclusions upon review of the record coincide with those which the immigration
judge articulated in his or her decision.") A.R. 60. The BIA specifically agreed with the
IJ that Lin did not set forth a credible claim for asylum and that he failed to prove that he
was eligible for CAT protection. The BIA also stated that Lin failed to show that it was
"more likely than not" that he would be tortured if he returned to China due to his
participation in the 1989 democracy demonstrations or because of his Christian religion.
Finally, the BIA denied Lin's request that his case be administratively closed because it
found that Lin failed to provide sufficient evidence establishing that he was married at the
time his "wife" was conditionally granted asylum.
Lin timely petitioned this Court for review of that decision and
simultaneously filed a Motion to Reconsider and Reopen. On February 13, 2004, the BIA
denied Lin's Motion to Reconsider and Reopen. With respect to reconsideration, the BIA
found that Lin did not demonstrate any error in the BIA's December 13, 2003 decision on
the record before it at that time. (A.R. at 2). With respect to reopening, the BIA
concluded that Lin did not satisfy the heavy burden governing the renewed application for
CAT protection and added that neither the BIA nor the IJ has jurisdiction to determine
Lin's claim that he is a derivative asylee. (A.R. 2).
Lin now seeks review of both of the BIA's decisions. For the following
reasons, we deny the petition.
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II.
We are without jurisdiction to review the BIA's February 13, 2004 decision
denying Lin's Motion to Reopen and Reconsider because Lin did not petition this Court
for review of that decision. The Supreme Court has interpreted INA § 106(a)(6) (1994)
(repealed) as contemplating two separate petitions for review in cases where a petitioner
wishes to challenge both a final order of deportation and the denial of a motion to reopen
or reconsider with respect to that order – one for the final order and one for the denial of
the motion. See Stone v. INS, 514 U.S. 386, 394-95 (1995).
Here, Lin properly filed a petition for review of the BIA's December 15,
2003 decision, affirming the IJ's denial of CAT protection and denying Lin's request to
administratively close the case. However, he did not petition this Court for review of the
BIA's February 13, 2004 decision. Section 309(c)(4)(C) of the Illegal Immigration
Reform and Immigrant Responsibility Act provides that a petition for judicial review
must be filed no later than 30 days after the date of the final order of exhaustion or
deportation. Since Lin never petitioned this Court for review of the BIA's February 13,
2004 decision, we are without jurisdiction to consider it. See IIRIRA §309 (c)(4)(C);
Narayan v. INS, 105 F.3d 1335 (9th Cir. 1997).
Therefore, our review is limited to the review of the December 15, 2003,
decision affirming the immigration judge’s denial of protection under the CAT and
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denying Lin’s request to administratively close his case. We are also without jurisdiction
to review the CAT claim or the issue of administrative closure.
Federal Rules of Appellate Procedure require that the argument portion of
an appellant's brief contain his contentions and reasons for them with citations to the
authorities and parts of the record on which he relies, and for each issue, a concise
statement of the applicable standard of review. See F ED. R. A PP. P. 28(a)(9); U.S. v.
Irizarry, 341 F.3d 273, 305 (3d Cir. 2003). We have held that an appellant who fails to
comply with this requirement fails to preserve the arguments that he otherwise could have
raised. See id. (citing Luderstadt v. Colafella, 885 F.2d 66, 78 (3d Cir. 1989)).
Here, Lin incorporated by reference his entire BIA appeal brief. Other
Circuits have rejected the practice of "incorporating by reference" arguments made in
proceedings below as a violation of Federal Appellate Procedure Rule 28(a)(9).2 As a
result of Lin's failure to properly brief the issue, it is not properly preserved for review by
this Court. Therefore, we are without jurisdiction to consider the merits of the CAT
protection claim.
2.
See, e.g., Four Seasons Hotels and Resorts, B.V., v. Consorcio Barr S.A., 377
F.3d 1164, 1167, n.4 (11th Cir. 2004); Northland Insurance Company v. Stewart Title
Guaranty Company, 327 F.3d 448, 452 (6th Cir. 2003); Cray Communications, Inc. v.
Novatel Computer Systems, Inc., 33 F3d 390, 396, n.6 (4th Cir. 1994); see also 16 C.
Wright, et al., F EDERAL P RACTICE AND P ROCEDURE §3974 at 733 & 742, n.27.7 (2d ed.
Supp. 1994).
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We lack jurisdiction to review an agency's exercise of discretion because
there are not meaningful standards by which a court could judge the exercise of that
discretion. See Heckler v. Chaney, 470 U.S. 821, 830 (1985); Calle-Vujiles v. Ashcroft,
320 F.3d 472, 474-75 (3d Cir. 2003). In Calle-Vujiles, we held that "[b]ecause the BIA
retains unfettered discretion to decline to sua sponte reopen or reconsider a deportation
proceeding, this court is without jurisdiction to review a decision declining to exercise
such discretion to reopen or reconsider the case." Calle-Vujiles, 320 F.3d at 475.
Like decisions to sua sponte reopen a case, decisions to administratively
close cases are decisions that are purely committed to the BIA's or IJ's discretion.
Accordingly, for these types of cases there are no meaningful standards by which this
Court could review that exercise of discretion. Accordingly, we are without jurisdiction to
review Lin's challenge to the denial of his request to administratively close his case.
III.
We lack jurisdiction to review the BIA's February 13, 2004 decision
denying Lin's Motion to Reopen and Reconsider because Lin did not petition this Court
for review of that decision. We are also without jurisdiction to consider Lin's claim that
he merits CAT protection because Lin failed to properly preserve this issue for review.
We lack jurisdiction to consider Lin's challenge to the denial of his request to
administratively close his case and in the alternative the BIA did not commit an abuse of
discretion. Therefore, for the foregoing reasons, the petition for review is denied.
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