Lin v. Garland ( 2022 )

19-2250
Lin v. Garland
BIA
A094 922 033
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 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 for the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 20th day of July, two thousand twenty-
4 two.
5
6 PRESENT:
7 RICHARD J. SULLIVAN,
8 EUNICE C. LEE,
9 BETH ROBINSON,
10 Circuit Judges.
11 _____________________________________
12
13 YIE LIN,
14 Petitioner,
15
16 v. 19-2250
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
1
2 FOR PETITIONER: Richard Tarzia, Esq., Belle Mead, NJ.
3
4 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General;
5 Linda S. Wernery, Assistant Director; Monica
6 M. Twombly, Trial Attorney, Office of
7 Immigration Litigation, United States
8 Department of Justice, Washington, DC.
9
10 UPON DUE CONSIDERATION of this petition for review of a Board of
11 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
12 DECREED that the petition for review is DENIED.
13 Petitioner Yie Lin, a native and citizen of the People’s Republic of China,
14 seeks review of a decision of the BIA denying his motion to reopen his removal
15 proceedings. In re Yie Lin, No. A094 922 033 (B.I.A. June 27, 2019). We assume
16 the parties’ familiarity with the underlying facts and procedural history.
17 We review the BIA’s denial of a motion to reopen for abuse of discretion.
18 See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008). It is undisputed
19 that Lin’s 2018 motion to reopen was untimely because it was filed almost six years
20 after his removal order became final in 2012. See 8 U.S.C. § 1229a(c)(7)(C)(i)
21 (providing 90-day time limit); 8 C.F.R. § 1003.2(c)(2) (same). Lin argues that the
22 BIA should have excused the time limit and reopened the proceedings because his
23 notice to appear (“NTA”), which did not contain a hearing date or time, was
2
1 deficient under Pereira v. Sessions, 138 S. Ct. 2105 (2018), and thus did not vest
2 jurisdiction with the immigration judge. The BIA did not abuse its discretion in
3 denying reopening because Lin had no likelihood of success in terminating his
4 proceedings based on Pereira. See INS v. Abudu, 485 U.S. 94, 104 (1988) (explaining
5 that the BIA may deny a motion to reopen for failure to establish a prima facie
6 case).
7 In Pereira, the Supreme Court held that the Immigration and Nationality Act
8 unambiguously requires an NTA to include a hearing time and place to trigger the
9 “stop-time rule,” 138 S. Ct. at 2118, which halts a noncitizen’s accrual of physical
10 presence or residence for the purposes of cancellation of removal, see 8 U.S.C.
11 § 1229b(a), (b), (d)(1). But Lin did not seek cancellation of removal, and an NTA
12 that omits hearing information is sufficient to vest the immigration court with
13 jurisdiction over removal proceedings “so long as a notice of hearing specifying
14 this information is later sent to the alien.” Banegas Gomez v. Barr, 922 F.3d 101, 112
15 (2d Cir. 2019). Thus, although Lin’s NTA did not specify the date and time of his
16 initial hearing, the BIA did not err in declining to reopen because Lin
17 unquestionably received notice of his hearings at which he appeared. See id.18 For the foregoing reasons, the petition for review is DENIED. All pending
3
1 motions and applications are DENIED and stays VACATED.
2 FOR THE COURT:
3 Catherine O’Hagan Wolfe,
4 Clerk of Court
5
4