Pursuant to Federal Rule of Appellate Procedure 1

43(c)(2), Attorney General Eric H. Holder, Jr., is

automatically substituted for former Attorney General

Alberto R. Gonzales as respondent in this case.

06-3913-ag

Lian v. Holder

BIA

A077 997 883

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 January, two thousand ten. th

5

6 PRESENT:

7 PIERRE N. LEVAL,

8 JOSÉ A. CABRANES,

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges.

11 _______________________________________

12

13 YIN TING LIAN, 

14 Petitioner,

15

16 v. 06-3913-ag 

17 NAC

18

19 ERIC H. HOLDER, Jr., U.S. ATTORNEY 

20 GENERAL,1

21 Respondent.

22 _______________________________________
2

1 FOR PETITIONER: Yee Ling Poon, Robert Duk-Hwan Kim,

2 Deborah Niedermeyer, New York, New

3 York.

4

5 FOR RESPONDENT: Michael F. Hertz, Acting Assistant

6 Attorney General, Richard M. Evans,

7 Assistant Director, Virginia Lum,

8 Attorney, Office of Immigration

9 Litigation, Civil Division, United

10 States Department of Justice,

11 Washington, D.C.

1 UPON DUE CONSIDERATION of this petition for review of a

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

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

4 review is DENIED.

5 Petitioner Yin Ting Lian, a native and citizen of the

6 People’s Republic of China, seeks review of a July 25, 2006

7 order of the BIA denying her counseled motion to reconsider. 

8 In re Yin Ting Lian, No. A077 997 883 (B.I.A. July 25,

9 2006). We assume the parties’ familiarity with the

10 underlying facts and procedural history of the case.

11 The BIA did not abuse its discretion in denying Lian’s

12 motion to reconsider. See Kaur v. BIA, 413 F.3d 232, 233

13 (2d Cir. 2005) (per curiam); Jin Ming Liu v. Gonzales, 439

14 F.3d 109, 111 (2d Cir. 2006). A motion to reconsider must

15 be filed with the BIA within 30 days after the mailing of
 Rather than challenging the BIA’s denial of her 2

motion to reconsider, Lian argues at length that she was

entitled to file a successive asylum application pursuant

to 8 U.S.C. § 1158(a)(2)(D) and that she was eligible for

relief based on the birth of her U.S. citizen children. 

Even if we were to reach these arguments, they are

largely foreclosed by Yuen Jin v. Mukasey, 538 F.3d 143

(2d Cir. 2008) and Jian Hui Shao v. Mukasey, 546 F.3d 138

(2d Cir. 2008). 

3

1 the BIA decision being challenged. 8 U.S.C.

2 § 1229a(a)(c)(6); 8 C.F.R. § 1003.2(b)(2). There is no

3 exception to the filing deadline for such motions. Matter

4 of J-J-, 21 I.&N. Dec. 976, 978 (B.I.A. 1997). It is

5 undisputed that Lian’s motion to reconsider was untimely. 

6 However, as the Government asserts, Lian fails to challenge

7 the BIA’s denial of her motion to reconsider as untimely. 

8 Because addressing this argument does not appear to be

9 necessary to avoid manifest injustice, we deem any such

10 argument waived. Yueqing Zhang v. Gonzales, 426 F.3d 540,

11 541 n.1, 545 n.7 (2d Cir. 2005). Lian’s waiver of the BIA’s

12 finding that her motion was untimely is dispositive of the

13 petition for review.2

14 For the foregoing reasons, the petition for review is

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

16 removal that the Court previously granted in this petition

17 is VACATED, and any pending motion for a stay of removal in
4

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

2 oral argument in this petition is DENIED in accordance with

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

4 Circuit Local Rule 34(b).

5

6 FOR THE COURT:

7 Catherine O’Hagan Wolfe, Clerk

8

9

10 By:____________________________

11