12-1979

Lin v. Holder

BIA

McManus, IJ

A070 901 983

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 Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 17th 4 day of September, two thousand thirteen.

5

6 PRESENT:

7 ROBERT A. KATZMANN,

8 Chief Judge,

9 RICHARD C. WESLEY,

10 DENNY CHIN,

11 Circuit Judges. 

12 _____________________________________

13

14 CHUN QIANG LIN,

15 Petitioner, 

16

17 v. 12-1979

18 NAC 

19 ERIC H. HOLDER, JR., UNITED STATES

20 ATTORNEY GENERAL,

21 Respondent.

22 _______________________________________

23

24 FOR PETITIONER: Adedayo O. Idowu, New York, New

25 York.

26

27 FOR RESPONDENT: Stuart F. Delery, Principal Deputy

28 Assistant Attorney General; Richard

29 M. Evans, Assistant Director; Ann
1 Carroll Varnon, Trial Attorney,

2 Office of Immigration Litigation,

3 United States Department of Justice,

4 Washington, D.C.

5 UPON DUE CONSIDERATION of this petition for review of a

6 decision of the Board of Immigration Appeals (“BIA”), it is

7 hereby ORDERED, ADJUDGED, AND DECREED that the petition for

8 review is DENIED.

9 Chun Qiang Lin, a native and citizen of the People’s

10 Republic of China, seeks review of an April 13, 2012,

11 decision of the BIA affirming the May 24, 2010, decision of

12 Immigration Judge (“IJ”) Margaret McManus, denying his

13 motion to reconsider and reopen. In re Chun Qiang Lin, No.

14 A070 901 983 (B.I.A. Apr. 13, 2012), aff’g No. A070 901 983

15 (Immig. Ct. N.Y. City May 24, 2010). We assume the parties’

16 familiarity with the underlying facts and procedural history

17 of this case. 

18 Under the circumstances of this case, we have reviewed

19 both the IJ’s and the BIA’s opinions “for the sake of

20 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

21 2008). Our review is limited to the agency’s denial of:

22 (1) Lin’s motion to reconsider the denial of his motion to

23 rescind his in absentia removal order; and (2) Lin’s motion

24 to reopen to apply for asylum based on a new claim. See Ke

2
1 Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-90 (2d

2 Cir. 2001). The applicable standards of review are well3 established. See Jian Hui Shao v. Mukasey, 546 F.3d 138,

4 168-69, 173 (2d Cir. 2008); Salimatou Bah v. Mukasey, 529

5 F.3d 99, 110-11 (2d Cir. 2008). 

6 A motion to reconsider must specify errors of fact or

7 law in the agency’s prior decision. See 8 U.S.C.

8 § 1229a(c)(6)(C); 8 C.F.R. § 1003.23(b)(2); see also Ke Zhen

9 Zhao, 265 F.3d at 90. The agency did not abuse its

10 discretion in finding no error in the IJ’s underlying

11 decision denying Lin’s motion to rescind his in absentia

12 removal order. 

13 An order of removal entered in absentia may be

14 rescinded only: (1) upon a motion filed at any time if the

15 alien demonstrates that he did not receive notice of his

16 hearing; or (2) upon a motion filed within 180 days after

17 the date of the order of removal if the alien demonstrates

18 that the failure to appear was because of exceptional

19 circumstances. 8 U.S.C. § 1229a(b)(5)(C); 8 C.F.R.

20 § 1003.23(b)(4)(ii). The agency did not err in concluding

21 that Lin had received notice in accordance with the relevant

22 statutory and regulatory provisions because he conceded that

3
1 written notice of his hearing was provided to his attorney

2 of record while he and his attorney were in Immigration

3 Court. See 8 U.S.C. § 1229(a)(2)(A); 8 C.F.R.

4 § 1003.23(b)(4)(ii); see also Song Jin Wu v. INS, 436 F.3d

5 157, 162 (2d Cir. 2006). 

6 Insofar as Lin’s motion to rescind was based on a claim

7 of exceptional circumstances, namely the ineffective

8 assistance of his former counsel, it was undisputably

9 untimely as it was filed more that ten years after the IJ’s

10 1999 in absentia order of removal. See 8 U.S.C.

11 § 1229a(b)(5)(C); 8 C.F.R. § 1003.23(b)(4)(ii). In order to

12 warrant equitable tolling of the applicable time limitation

13 based on ineffective assistance of counsel, an alien is

14 required to demonstrate “due diligence” in pursuing his

15 claim during “both the period of time before the ineffective

16 assistance of counsel was or should have been discovered and

17 the period from that point until the motion to reopen is

18 filed.” Rashid v. Mukasey, 533 F.3d 127, 131 (2d Cir.

19 2008); see also Cekic v. INS, 435 F.3d 167, 170 (2d Cir.

20 2006). The agency did not err in finding that Lin failed to

21 demonstrate due diligence because the record indicates that

22 although he knew of the basis for his claim by at least May

23 2007, he did not file a motion to reopen based on that claim

4
1 until December 2009 or provide any details as to the actions

2 he took in his case for those two intervening years. See

3 Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007);

4 Cekic, 435 F.3d at 171.

5 Finally, we do not consider the agency’s denial of

6 Lin’s motion to reopen because his contention that he has a

7 well-founded fear of persecution based on his violation of

8 China’s family planning policy does not challenge the bases

9 for the agency’s denial of his untimely motion to reopen. 

10 See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545

11 n.7 (2d Cir. 2005). 

12 For the foregoing reasons, the petition for review is

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

14 removal that the Court previously granted in this petition

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

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

17 oral argument in this petition is DENIED in accordance with

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

19 Circuit Local Rule 34.1(b).

20 FOR THE COURT: 

21 Catherine O’Hagan Wolfe, Clerk

22

5