09-3163-ag

Lin v. Holder

BIA

A072 473 979

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

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

4 New York, on the 20 day of July, two thousand ten. th

5

6 PRESENT:

7 REENA RAGGI,

8 RICHARD C. WESLEY,

9 GERARD E. LYNCH,

10 Circuit Judges.

11 _________________________________________

12

13 YI QUO LIN, a.k.a. ZI GUO LIN, 

14 a.k.a. YI GUO LIN,

15 Petitioner, 

16

17 v. 09-3163-ag

18 NAC

19 ERIC H. HOLDER, JR., UNITED STATES 

20 ATTORNEY GENERAL, 

21 Respondent.

22 _________________________________________

23

24 FOR PETITIONER: Joe Zhenghong Zhou, Flushing, 

25 New York.

26

27 FOR RESPONDENT: Tony West, Assistant Attorney

28 General; John C. Cunningham, Senior

29 Litigation Counsel; Claire L.

30 Workman, Trial Attorney, Office of

31 Immigration Litigation, United

32 States Department of Justice,

33 Washington, D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

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

3 ORDERED, ADJUDGED, AND DECREED, that the petition for review

4 is DENIED.

5 Petitioner Yi Quo Lin, a native and citizen of the

6 People’s Republic of China, seeks review of the June 29,

7 2009, order of the BIA denying his motion to reopen. In re

8 Lin, No. A072 473 979 (B.I.A. June 29, 2009). We review the

9 BIA’s denial of a motion to reopen for abuse of discretion. 

10 See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). We

11 assume the parties’ familiarity with the underlying facts

12 and procedural history of the case.

13 A motion to reopen must generally be filed no later

14 than 90 days after the date on which the final

15 administrative decision was rendered in the proceedings

16 sought to be reopened and only one such motion may be filed. 

17 8 C.F.R. § 1003.2(c)(2). There is no dispute that Lin’s

18 third motion to reopen, filed in December 2008, was both

19 numerically barred and untimely. See id. 

20 The BIA did not abuse its discretion in declining to

21 equitably toll the time period for Lin to file his motion to

22 reopen because he failed to demonstrate that he exercised

23 due diligence in pursuing reopening of his removal
3

1 proceedings. See Cekic v. INS, 435 F.3d 167, 170 (2d Cir.

2 2006); see also Rashid v. Mukasey, 533 F.3d 127, 131 (2d

3 Cir. 2008). In fact, Lin does not claim to have taken any

4 action in his removal proceedings for more than four years

5 between the BIA’s June 2001 denial of his first motion to

6 reopen and April 2006, when he contacted his current

7 counsel. See Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d

8 Cir. 2007). 

9 Although Lin expresses his claim as a violation of his

10 due process rights, we note that he has no due process right

11 in seeking a discretionary grant of a motion to reopen. Cf.

12 Yuen Jin v. Mukasey, 538 F.3d 143, 156-57 (2d Cir. 2008)

13 (holding that “an alien who has already filed one asylum

14 application, been adjudicated removable and ordered

15 deported, and who has nevertheless remained in the country

16 illegally for several years, does not have a liberty or

17 property interest in a discretionary grant of asylum”); see

18 also Gomez-Palacios v. Holder, 560 F.3d 354, 361 n.2 (5th

19 Cir. 2009); Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir.

20 2008). Regardless, Lin has filed and had adjudicated an

21 asylum application and three motions to reopen, two of which

22 raised his ineffective assistance of counsel claim, and has

23 thus received ample process. See Yuen Jin, 538 F.3d at 157.
4

1 Finally, because Lin does not challenge the BIA’s

2 findings that: (1) he failed to offer new evidence

3 supporting his claim that his wife underwent a forced

4 sterilization; (2) he did not establish changed country

5 conditions in China; (3) it does not have jurisdiction over

6 his pending application for adjustment of status; and (4) he

7 failed to show that sua sponte reopening of his proceedings

8 was warranted, we do not address those portions of the BIA’s

9 opinion. 

10 For the foregoing reasons, the petition for review is

11 DENIED. As we have completed our review, any stay of

12 removal that the Court previously granted in this petition

13 is VACATED, and any pending motion for a stay of removal in

14 this petition is DISMISSED as moot. Any pending request for

15 oral argument in this petition is DENIED in accordance with

16 Federal Rule of Appellate Procedure 34(a)(2), and Second

17 Circuit Local Rule 34.1(b).

18 FOR THE COURT: 

19 Catherine O’Hagan Wolfe, Clerk

20

21