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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 17 th** **day of September, two thousand thirteen.** 4 5 **PRESENT:** 6 **ROBERT A. KATZMANN,** 7 Chief Judge, 8 **RICHARD C. WESLEY,** 9 **DENNY CHIN,** 10 Circuit Judges**.** 11

**_____________________________________** 12 13 **CHUN QIANG LIN,** 14 Petitioner**,** 15 16 **v. 12-1979** 17 **NAC** 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent **.** 21

**_______________________________________** 22 23 **FOR PETITIONER: Adedayo O. Idowu, New York, New** 24 **York.** 25 26 **FOR RESPONDENT: Stuart F. Delery, Principal Deputy** 27 **Assistant Attorney General; Richard** 28 **M. Evans, Assistant Director; Ann** 29**Carroll Varnon, Trial Attorney,** 1 **Office of Immigration Litigation,** 2 **United States Department of Justice,** 3 **Washington, D.C.** 4 UPON DUE CONSIDERATION of this petition for review of a 5 decision of the Board of Immigration Appeals (“BIA”), it is 6 hereby ORDERED, ADJUDGED, AND DECREED that the petition for 7 review is DENIED. 8 Chun Qiang Lin, a native and citizen of the People’s 9 Republic of China, seeks review of an April 13, 2012, 10 decision of the BIA affirming the May 24, 2010, decision of 11 Immigration Judge (“IJ”) Margaret McManus, denying his 12 motion to reconsider and reopen. In re Chun Qiang Lin , No. 13 A070 901 983 (B.I.A. Apr. 13, 2012),aff’gNo. A070 901 983 14 (Immig. Ct. N.Y. City May 24, 2010). We assume the parties’ 15 familiarity with the underlying facts and procedural history 16 of this case. 17 Under the circumstances of this case, we have reviewed 18 both the IJ’s and the BIA’s opinions “for the sake of 19 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 20 2008). Our review is limited to the agency’s denial of: 21 (1) Lin’s motion to reconsider the denial of his motion to 22 rescind his in absentia removal order; and (2) Lin’s motion 23 to reopen to apply for asylum based on a new claim. See Ke 24

2Zhen Zhao v. U.S. Dep’t of Justice , 265 F.3d 83, 89-90 (2d 1 Cir. 2001). The applicable standards of review are well2 established. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 3 168-69, 173 (2d Cir. 2008); Salimatou Bah v. Mukasey, 529 4 F.3d 99, 110-11 (2d Cir. 2008). 5 A motion to reconsider must specify errors of fact or 6 law in the agency’s prior decision. See8 U.S.C. 7 § 1229a(c)(6)(C); 8 C.F.R. § 1003.23(b)(2); see also Ke Zhen 8 Zhao , 265 F.3d at 90. The agency did not abuse its 9 discretion in finding no error in the IJ’s underlying 10 decision denying Lin’s motion to rescind his in absentia 11 removal order. 12 An order of removal entered in absentiamay be 13 rescinded only: (1) upon a motion filed at any time if the 14 alien demonstrates that he did not receive notice of his 15 hearing; or (2) upon a motion filed within 180 days after 16 the date of the order of removal if the alien demonstrates 17 that the failure to appear was because of exceptional 18 circumstances. 8 U.S.C. § 1229a(b)(5)(C); 8 C.F.R. 19 § 1003.23(b)(4)(ii). The agency did not err in concluding 20 that Lin had received notice in accordance with the relevant 21 statutory and regulatory provisions because he conceded that 22

3written notice of his hearing was provided to his attorney 1 of record while he and his attorney were in Immigration 2
Court. See 8 U.S.C. § 1229(a)(2)(A); 8 C.F.R. 3 § 1003.23(b)(4)(ii); see also Song Jin Wu v. INS , 436 F.3d 4 157, 162 (2d Cir. 2006). 5 Insofar as Lin’s motion to rescind was based on a claim 6 of exceptional circumstances, namely the ineffective 7 assistance of his former counsel, it was undisputably 8 untimely as it was filed more that ten years after the IJ’s 9 1999 in absentia order of removal. See 8 U.S.C. 10 § 1229a(b)(5)(C); 8 C.F.R. § 1003.23(b)(4)(ii). In order to 11 warrant equitable tolling of the applicable time limitation 12 based on ineffective assistance of counsel, an alien is 13 required to demonstrate “due diligence” in pursuing his 14 claim during “both the period of time before the ineffective 15 assistance of counsel was or should have been discovered and 16 the period from that point until the motion to reopen is 17 filed.” Rashid v. Mukasey, 533 F.3d 127, 131 (2d Cir. 18 2008); see also Cekic v. INS , 435 F.3d 167, 170 (2d Cir. 19 2006). The agency did not err in finding that Lin failed to 20 demonstrate due diligence because the record indicates that 21 although he knew of the basis for his claim by at least May 22 2007, he did not file a motion to reopen based on that claim 23 4until December 2009 or provide any details as to the actions 1 he took in his case for those two intervening years. See 2 Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007); 3 Cekic , 435 F.3d at 171. 4 Finally, we do not consider the agency’s denial of 5 Lin’s motion to reopen because his contention that he has a 6 well-founded fear of persecution based on his violation of 7 China’s family planning policy does not challenge the bases 8 for the agency’s denial of his untimely motion to reopen. 9 See Yueqing Zhang v. Gonzales , 426 F.3d 540, 541 n.1, 545 10 n.7 (2d Cir. 2005). 11 For the foregoing reasons, the petition for review is 12 DENIED. As we have completed our review, any stay of 13 removal that the Court previously granted in this petition 14 is VACATED, and any pending motion for a stay of removal in 15 this petition is DISMISSED as moot. Any pending request for 16 oral argument in this petition is DENIED in accordance with 17 Federal Rule of Appellate Procedure 34(a)(2), and Second 18 Circuit Local Rule 34.1(b). 19
FOR THE COURT: 20 Catherine O’Hagan Wolfe, Clerk 21 22

5