19

- 3062 Lin v. Garland BIA Pocz t er, IJ A 076 683 998 

### 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.**

**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the**  **Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 9**  **t h**  **da y of**  **A u**  **g u**  **s t**  **, two thousand twenty** 

**- one** 

**.** 4 5 **PRESENT:** 6 **PIERRE N. LEVAL,** 7 **ROBERT D. SACK,** 8 **RAYMOND J. LOHIER, JR.,** 9 10 **Circuit Judges.** 11

**_____________________________________** 12 13 **LUNG LIN ,**  **AKA RONG LIN,** 14 **Petitioner ,**  15 16

**v. 19** 

**- 3062**  17 **NAC** 18 **MERRICK B. GARLAND ,**  **UNITED** 19 **STATES ATTORNEY GENERAL,** 20 **Respondent**

**.** 21

**_____________________________________** 22 23 **FOR PETITIONER :**  Jean Wang , Wang Law Office, PLLC, 24 Flushing, NY

. 25 26 **FOR RESPONDENT:** Joseph H. Hunt , Assistant Attorney 27 General ; Stephen J. Flynn , 282 Assistant Director; Kathryn 1 McKinney , Attorney, Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, D C. 5

UPON DUE CONSIDERATION of this petition for review of a 6

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

ORDERED, ADJUDGED, AND DECREED that the petitio n for review 8

is GRANTED

. 9

Petitioner Lun g Lin , a native and citizen of China , seeks 10

review of a September 16, 2019 , decision of the BIA affirming 11

a September 28, 2018 , decision of an Immigration Judge (“IJ”) 12

denying his motion to reopen

. In re Lung Lin a.k.a. Rong 13

Lin , No. A 076 683 998 (B.I.A. Sept. 16, 2019 ), aff’g No. A 076 14

683 998 (Immig. Ct. NY City Sept. 28, 2018 ). We assume the 15

parties’ familiarity with the underlying facts and procedural 16

history. 17

We review the denial of a motion to reopen for abuse of 18

discretion. See Jian Hui Shao v. Mukasey , 546 F.3d 138, 16 8

- 19

6 9 (2d Cir. 2008). Contrary to Lin’s assertion, the agency 20

did not ignore his argument for equitable tolling and sua 21

sponte reopening ; it assumed arguendo that Lin’s motion was 22

timely and not number

- barred and considered the merits

. The 23

agency may deny a motion to reopen if the movant fails to 243 establish his prima facie eligibility for the underlying 1

relief sought. See INS v. Abudu , 485 U.S. 94, 104 (1988). 2

Lin argue d that he established his prima facie 3

eligibility for cancellation of removal given the decision in 4

Pereira v. Sessions , 138 S. Ct. 2105 (2018) . Under Pereira , 5

Lin’s notice to appear (“NTA”), which did not contain a 6

hearing date or time, was deficient and did not stop time for 7

calculating the physical presence required for cancellation 8

of removal

. The agency concluded that his defective NTA was 9

perfected when he received a hearing notice providing the 10

date and time of his hearing. The Supreme Court has since 11

rejected the agency ’s position, holding that an NTA that does 12

not contain a hearing date and ti me as required by Pereira is 13

not cured for purposes of the stop

- time rule by a subsequent 14

hearing notice that provides the missing information. See 15

Niz

- Chavez v. Garland , 141 S. Ct. 1474 (2021). Accordingly, 16

the agency erred in its conclusion that Lin failed to 17

establish his prima facie eligibility for cancellation of 18

removal

. 19

For the foregoing reasons, the petition for review is 20

GRANTED , the BIA’s decision is VACATED, and the case is 214 REMANDED for further proceedings

. All pe nding motions and 1

applications are DENIED and stays VACATED. 2

FOR THE COURT: 3 Catherine O ’ Hagan Wolfe 4 Clerk of Court 5