Chen v. Wilkinson ( 2021 )

19-1420
Chen v. Wilkinson
BIA
A098 113 319
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 2nd 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 DAN LIN-CHEN, AKA DAN CHEN,
13 Petitioner,
14
15 v. 19-1420
16 NAC
17 ROBERT M. WILKINSON, ACTING
18 UNITED STATES ATTORNEY GENERAL,
19 Respondent. 1
20 _____________________________________
21
22 FOR PETITIONER: Richard Tarzia, Esq., Belle Mead,
23 NJ.
24
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 FOR RESPONDENT: Assistant Attorney General; Nancy
2 Friedman, Senior Litigation
3 Counsel, Margaret A. O’Donnell,
4 Trial Attorney; Office of
5 Immigration Litigation, United
6 States Department of Justice,
7 Washington, DC.
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DENIED.
12 Petitioner Dan Lin-Chen, a native and citizen of the
13 People’s Republic of China, seeks review of an April 17, 2019,
14 decision of the BIA denying her motion to reopen and
15 reconsider. In re Dan Lin-Chen, No. A098 113 319 (B.I.A.
16 Apr. 17, 2019). We assume the parties’ familiarity with the
17 underlying facts and procedural history.
18 We review the BIA’s denial of a motion to reopen or
19 reconsider for abuse of discretion. Ali v. Gonzales, 448
20 F.3d 515, 517 (2d Cir. 2006); Jin Ming Liu v. Gonzales, 439
21 F.3d 109, 111 (2d Cir. 2006). The BIA did not abuse its
22 discretion in denying Lin-Chen’s 2018 motion as untimely
23 either as a motion to reopen or reconsider because her removal
24 order was final in 2007. See 8 U.S.C. § 1229a(c)(6) (giving
25 30 days from challenged decision to file motion to
2
1 reconsider), (7)(C)(i) (giving 90 days from final order to
2 file motion to reopen).
3 Additionally, the BIA’s alternate denial on the merits
4 was correct. Lin-Chen argued that under Pereira v. Sessions,
5 138 S. Ct. 2105, 2114 (2018), the immigration court lacked
6 jurisdiction over her removal proceedings because her notice
7 to appear (“NTA”) omitted the date and time of her initial
8 hearing. Pereira held that an NTA that fails to designate
9 the time or place of an initial hearing in removal proceeding
10 is not a “notice to appear under section 1229(a)” and does
11 not trigger the stop-time rule ending the noncitizen’s period
12 of continuous presence in the United States for purposes of
13 cancellation of removal. 138 S. Ct. at 2113–20. However,
14 Lin-Chen did not apply for cancellation of removal.
15 Instead, she argues that Pereira also renders an NTA that
16 omits this information inadequate to vest jurisdiction in the
17 immigration court. Lin-Chen’s argument is foreclosed by
18 Banegas Gomez v. Barr, 922 F.3d 101, 110–12 (2d Cir. 2019),
19 which held that an NTA that omits the date and time of the
20 hearing is nevertheless adequate to vest jurisdiction in the
21 immigration court as long as the noncitizen received a
3
1 subsequent hearing notice with the missing information. 922
2 F.3d at 110–12. Although Lin-Chen’s NTA did not contain the
3 hearing information, she received subsequent notice of her
4 hearings and appeared at them.
5 For the foregoing reasons, the petition for review is
6 DENIED. All pending motions and applications are DENIED and
7 stays VACATED.
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe,
10 Clerk of Court
4