13-1258

Lin v. Holder

BIA

Videla, IJ

A095 843 940

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 18th 4 day of June, two thousand fourteen.

5

6 PRESENT:

7 JOSÉ A. CABRANES,

8 DEBRA ANN LIVINGSTON,

9 SUSAN L. CARNEY,

10 Circuit Judges.

11 _____________________________________

12

13 DAN LIN,

14 Petitioner, 

15

16 v. 13-1258

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Bruno Joseph Bembi, Hempstead, NY.

24

25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney

26 General; Stephen J. Flynn, Assistant

27 Director; Lynda A. Do, Attorney,

28 Office of Immigration Litigation,

29 United States Department of Justice,

30 Washington, D.C.
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 is

4 DENIED.

5 Petitioner Dan Lin, a native and citizen of China, seeks

6 review of a March 14, 2013 order of the BIA, dismissing her

7 appeal from the July 31, 2012, decision of an Immigration

8 Judge (“IJ”), which pretermitted asylum and granted

9 withholding of removal. In re Dan Lin, No. A095 843 940

10 (B.I.A. Mar. 14, 2013), aff’g No. A095 843 940 (Immig. Ct. New

11 York City July 31, 2012). We assume the parties’ familiarity

12 with the underlying facts and procedural history in this case. 

13 Under the circumstances of this case, we review the

14 decisions of both the IJ and BIA “for the sake of

15 completeness.” See Zaman v. Mukasey, 514 F.3d 233, 237 (2d

16 Cir. 2008) (per curiam) (internal quotation marks omitted). 

17 The applicable standards of review are well established. See

18 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562

19 F.3d 510, 513 (2d Cir. 2009).

20 Contrary to Lin’s assertions, the BIA properly dismissed

21 her appeal because she waived her right to appeal from the

22 IJ’s decision. See 8 C.F.R. § 1003.1(d)(2)(i)(G) (“A single

23 Board member or panel may summarily dismiss any appeal . . .

2
1 barred by an affirmative waiver of the right of appeal that is

2 clear on the record.”). We have recognized that “accepting an

3 IJ’s decision as final can serve as an effective waiver of

4 appeal when the record of the interaction between the IJ and

5 the alien fairly supports the conclusion that the alien or his

6 counsel understood the nature of the waiver.” Ali v. Mukasey,

7 525 F.3d 171, 174 (2d Cir. 2008). At the hearing on July 31,

8 2012, the IJ stated that he would grant withholding and then

9 asked, “[W]ill the Government accept my decision and waive

10 appeal?” AR 188. After the attorney for the government

11 consented, the IJ asked Lin’s attorney if her client would do

12 likewise. At this point, the court went off the record so

13 that Lin could consult with her attorney about the

14 consequences of waiving her appellate rights. Lin’s counsel

15 then stated that Lin “agrees to accept this as a final

16 decision.” AR 189. Lin does not contend that her attorney

17 rendered ineffective assistance by improperly advising her of

18 the waiver’s consequences, and she has not complied with the

19 procedural requirements for alleging an ineffective assistance

20 claim under Matter of Lozada, 19 I&N Dec. 637 (B.I.A. 1988). 

21 See Jian Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 46

22 (2d Cir. 2005). Therefore, the BIA’s finding that Lin

3
1 knowingly and intelligently waived her appellate rights is

2 supported by substantial evidence. See 8 U.S.C.

3 § 1252(b)(4)(B) (noting that, on review, the agency’s factual

4 findings are “conclusive unless any reasonable adjudicator

5 would be compelled to conclude to the contrary”).

6 Lastly, Lin’s contention that the BIA had continuing

7 jurisdiction because it previously remanded her proceedings is

8 misplaced. The BIA was divested of jurisdiction when it

9 remanded the case to a different IJ in 2007, as it did not did

10 not expressly retain jurisdiction in that order. See Chupina

11 v. Holder, 570 F.3d 99, 103 (2d Cir. 2009) (per curiam)

12 (citing Matter of Patel, 16 I&N Dec. 600, 601 (B.I.A. 1978)). 

13 In the course of the usual appeal, Lin would have been able to

14 challenge the reliance of the second IJ on the initial IJ’s

15 findings, see INS v. Chadha, 462 U.S. 919, 938 (1983) (noting

16 that final orders of removal include “all matters on which the

17 validity of the final order is contingent” (citation

18 omitted)), but she waived her right to appeal.

19

20

21

22

4
1 For the foregoing reasons, the petition for review is

2 DENIED. 

3 FOR THE COURT: 

4 Catherine O’Hagan Wolfe, Clerk

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