19-3062

Lin v. Garland

BIA

Poczter, IJ

A076 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.

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 

New York, on the 9th 4 day of August, two thousand twenty-one.

5

6 PRESENT:

7 PIERRE N. LEVAL,

8 ROBERT D. SACK,

9 RAYMOND J. LOHIER, JR.,

10

11 Circuit Judges.

12 _____________________________________

13

14 LUNG LIN, AKA RONG LIN,

15 Petitioner,

16

17 v. 19-3062

18 NAC

19 MERRICK B. GARLAND, UNITED 

20 STATES ATTORNEY GENERAL,

21 Respondent.

22 _____________________________________

23

24 FOR PETITIONER: Jean Wang, Wang Law Office, PLLC, 

25 Flushing, NY.

26

27 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 

28 General; Stephen J. Flynn , 
2

1 Assistant Director; Kathryn 

2 McKinney, Attorney, Office of 

3 Immigration Litigation, United 

4 States Department of Justice, 

5 Washington, DC.

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 Lung Lin, a native and citizen of China, seeks 

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

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

13 denying his motion to reopen. In re Lung Lin a.k.a. Rong 

14 Lin, No. A076 683 998 (B.I.A. Sept. 16, 2019), aff’g No. A076 

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

16 parties’ familiarity with the underlying facts and procedural 

17 history.

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

19 discretion. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-

20 69 (2d Cir. 2008). Contrary to Lin’s assertion, the agency 

21 did not ignore his argument for equitable tolling and sua 

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

23 timely and not number-barred and considered the merits. The 

24 agency may deny a motion to reopen if the movant fails to 
3

1 establish his prima facie eligibility for the underlying 

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

3 Lin argued that he established his prima facie 

4 eligibility for cancellation of removal given the decision in 

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

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

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

8 calculating the physical presence required for cancellation

9 of removal. The agency concluded that his defective NTA was 

10 perfected when he received a hearing notice providing the 

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

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

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

14 not cured for purposes of the stop-time rule by a subsequent 

15 hearing notice that provides the missing information. See 

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

17 the agency erred in its conclusion that Lin failed to 

18 establish his prima facie eligibility for cancellation of 

19 removal.

20 For the foregoing reasons, the petition for review is 

21 GRANTED, the BIA’s decision is VACATED, and the case is 
4

1 REMANDED for further proceedings. All pending motions and 

2 applications are DENIED and stays VACATED.

3 FOR THE COURT: 

4 Catherine O’Hagan Wolfe

5 Clerk of Court