10-1480-ag

Lin v. Holder

BIA

A077 296 727

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

New York, on the 19th 4 day of July, two thousand eleven.

5

6 PRESENT:

7 RALPH K. WINTER,

8 JOSÉ A. CABRANES,

9 RAYMOND J. LOHIER, JR.,

10 Circuit Judges.

11 _____________________________________

12

13 HUI JIN LIN, also known as HURJIN LIN,

14 Petitioner, 

15

16 v. 10-1480-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Thomas V. Massucci, New York, NY.

24

25 FOR RESPONDENT: Tony West, Assistant Attorney

26 General; Leslie McKay, Assistant

27 Director; Margot L. Carter, Trial

28 Attorney, Office of Immigration

29 Litigation, Civil Division, United

30 States Department of Justice,

31 Washington, D.C.
2

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 Hui Jin Lin, a native and citizen of China, seeks

6 review of a March 22, 2010, order of the BIA denying her

7 motion to reconsider. In re Hui Jin Lin, No. A077 296 727

8 (B.I.A. March 22, 2010). We assume the parties’ familiarity

9 with the underlying facts and procedural history of this

10 case.

11 Our review is limited to the BIA’s March 2010 denial of

12 reconsideration, as Lin’s petition for review is timely

13 filed only as to that order. See, e.g., Stone v. INS, 514

14 U.S. 386, 405 (1995) (holding that the Courts of Appeals

15 must treat each petition for review as challenging only the

16 BIA decision from which it was timely filed). 

17 Although we generally lack jurisdiction to review a

18 decision of the BIA not to reopen or reconsider proceedings

19 sua sponte, as such a decision is “entirely discretionary,” 

20 see Azmond Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.

21 2006), because Lin’s motion for reconsideration was timely

22 filed from the denial of reopening, it is a statutory motion
3

1 to reconsider, the denial of which we generally review for

2 abuse of discretion. See 8 U.S.C. § 1229a(c)(6)(A)-(C); 

3 8 C.F.R. § 1003.2(b)(2); Luna v. Holder, 637 F.3d 85, 96 (2d

4 Cir. 2011); Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005)

5 (per curiam). As discussed below, however, the BIA did not

6 abuse its discretion by denying reconsideration. 

7 Lin argues that the BIA abused its discretion in

8 denying reconsideration because the IJ’s frivolous finding

9 was erroneous and because the BIA did not meaningfully

10 address the problematic aspects of that finding. These

11 arguments are unavailing. On reconsideration, the BIA was

12 not required to revisit the frivolous finding, because it

13 had previously considered and rejected the same arguments in

14 reviewing Lin’s previous motion. See Jin Ming Liu v.

15 Gonzales, 439 F.3d 109, 111 (2d Cir. 2006) (holding that the

16 BIA does not abuse its discretion by denying a motion to

17 reconsider where the motion merely repeats arguments that

18 the BIA has previously rejected). In any case, the BIA did

19 not abuse its discretion, because the record contained

20 multiple warnings to Lin regarding the permanent bar to

21 relief that would result from a frivolous application, Lin

22 had repeated opportunities to correct inaccuracies and
4

1 explain inconsistencies, and the IJ listed multiple material

2 inconsistencies and instances of implausibility in Lin’s

3 testimony. Accordingly, the IJ complied with the law

4 regarding frivolous findings that was in effect at the time

5 of his decision, 8 C.F.R. § 208.20 (2000), and the BIA

6 properly affirmed his decision. The regulatory requirements

7 for a frivolous finding were therefore met, and Lin should

8 not be permitted to seek application of a new guideline that

9 did not take effect until several years after she was

10 ordered removed. See Wei Guang Wang v. BIA, 437 F.3d 270,

11 274 (2d Cir. 2006); see also Alvarenga-Villalobos v.

12 Ashcroft, 271 F.3d 1169, 1172-73 (9th Cir. 2001). 

13 For the foregoing reasons, the petition for review is

14 DENIED. Any pending request for oral argument in this

15 petition is DENIED in accordance with Federal Rule of

16 Appellate Procedure 34(a)(2), and Second Circuit Local Rule

17 34.1(b).

18 FOR THE COURT: 

19 Catherine O’Hagan Wolfe, Clerk

20