09 -31 63 -ag

Lin v . Holder BIA A072 473 979 

### UNITE D STATES C OURT OF AP PEALS FOR T HE SE COND CIRCU IT 

# SUM MARY ORDE R

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. C I T A T I O N T O A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND I S G O V E RN ED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A D O C U M E N T F I L E D W I T H T H I S C O U R T , A P A R T Y MU S T C I T E E I T H E R T H E F E D E RA L A P P E NDIX OR AN ELECTRONIC DATABASE (WITH T HE 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 C ircuit 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 1 1 assume the parties’ familiarity with the underlying facts 1 2 and procedural history of the case. 1 3 A motion to reopen must generally be filed no later 1 4 than 90 days after the date on which the final 1 5 administrative decision was rendered in the proceedings 1 6 sought to be reopened and only one such motion may be filed. 1 7 8 C.F.R. § 1003.2(c)(2). There is no dispute that Lin’s 1 8 third motion to reopen, filed in December 2008, was both 1 9 numerically barred and untimely. See id. 2 0 The BIA did not abuse its discretion in declining to 2 1 equitably toll the time period for Lin to file his motion to 2 2 reopen because he failed to demonstrate that he exercised 2 3 due diligence in pursuing reopening of his removal3 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 1 0 due process rights, we note that he has no due process right 1 1 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) 1 3 (holding that “an alien who has already filed one asylum 1 4 application, been adjudicated removable and ordered 1 5 deported, and who has nevertheless remained in the country 1 6 illegally for several years, does not have a liberty or 1 7 property interest in a discretionary grant of asylum”); see 18 also Gomez-Palacios v. Holder , 560 F.3d 354, 361 n.2 (5th 1 9 Cir. 2009); Iglesias v. Mukasey , 540 F.3d 528, 531 (7th Cir. 2 0 2008). Regardless, Lin has filed and had adjudicated an 2 1 asylum application and three motions to reopen, two of which 2 2 raised his ineffective assistance of counsel claim, and has 2 3 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 opinion. 9 1 0 For the foregoing reasons, the petition for review is 1 1 DENIED. As we have completed our review, any stay of 1 2 removal that the Court previously granted in this petition 1 3 is VACATED, and any pending motion for a stay of removal in 1 4 this petition is DISMISSED as moot. Any pending request for 1 5 oral argument in this petition is DENIED in accordance with 1 6 Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). 17 1 8 FOR THE COURT: Catherine O’Hagan Wolfe, Clerk 19 20 21