Lin v. Barr

     19-85
     Lin v. Barr
                                                                                  BIA
                                                                          A075 780 271
                        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
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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 TO 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
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 23rd day of October, two thousand twenty.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            ROSEMARY S. POOLER,
 9            GERARD E. LYNCH,
10                 Circuit Judges.
11   _____________________________________
12
13   TINGYI LIN, AKA TING JIANG LIN,
14   AKA CADY JIANG,
15            Petitioner,
16
17                 v.                                            19-85
18                                                               NAC
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                  Richard Tarzia, Belle Mead, NJ.
25
26   FOR RESPONDENT:                  Ethan P. Davis, Acting Assistant
27                                    Attorney General; Jessica E.
28                                    Burns, Senior Litigation Counsel;
29                                    Maarja T. Luhtaru, Trial Attorney,
30                                    Office of Immigration Litigation,
31                                    United States Department of
32                                    Justice, Washington, DC.
 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

 4   is DENIED.

 5       Petitioner   Tingyi Lin, a native and citizen of       the

 6   People’s Republic of China, seeks review of a December 14,

 7   2018, decision of the BIA denying her motion to reopen and

8    terminate her removal proceedings.      In re Tingyi Lin, No.

9    A075 780 721 (B.I.A. Dec. 14, 2018).     We assume the parties’

10   familiarity with the underlying facts and procedural history.

11       We review the BIA’s denial of a motion to reopen for

12   abuse of discretion.   See Jian Hui Shao v. Mukasey, 

546 F.3d 13

  138, 168-69 (2d Cir. 2008).       Before the BIA, Lin moved to

14   reopen and terminate her removal proceedings, arguing that

15   the time limit for filing her motion should be excused and

16   that her notice to appear (“NTA”) was insufficient to commence

17   removal proceedings under the Supreme Court’s decision in

18   Pereira v. Sessions, 

138 S. Ct. 2105

(2018), because it did

19   not contain a hearing date or time.

20       It is undisputed that Lin’s 2018 motion to reopen was

21   untimely because it was filed more than nine years after her
                                   2
 1   removal    order     became     final      in    2009.        See   8 U.S.C.

 2   § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).                   Lin argues

 3   that the BIA should have excused the time limit given the

 4   intervening decision in Pereira, 

138 S. Ct. 2105

, under which

 5   her NTA was insufficient to place her in removal proceedings.

 6   Because Lin’s Pereira argument is without merit, as discussed

 7   below, the BIA did not err in declining to either excuse the

 8   time    limitation   based     on   that    decision     or   exercise    its

 9   authority to reopen sua sponte.            See 8 C.F.R. § 1003.2(c)(3)

10   (listing    exceptions    to    the   time      limitation);    Mahmood    v.

11   Holder, 

570 F.3d 466

, 469 (2d Cir. 2009) (noting that an

12   untimely motion may be considered under the agency’s sua

13   sponte    authority,     we    lack   jurisdiction       to    review    such

14   decision, but we may remand if the agency misperceived the

15   law).

16          In Pereira, the Supreme Court held that the Immigration

17   and Nationality Act unambiguously requires an NTA to include

18   a hearing time and place to trigger the “stop-time rule,” 

138 19 S. Ct. at 2113

–20, which cuts off a noncitizen’s accrual of

20   physical presence or residence for the purposes of qualifying

21   for cancellation of removal, see 8 U.S.C. § 1229b(a), (b),
                                           3
 1   (d)(1).     Lin does not challenge her accrual of physical

 2   presence or the application of the stop-time rule, but instead

 3   argues that Pereira also invalidates an NTA, like hers, that

 4   omitted the hearing information and contends that the NTA was

 5   thus    insufficient        to   vest       the   immigration      court     with

 6   jurisdiction over her removal proceedings.                  We have rejected

7    this    argument,    holding      that      Pereira    addresses     a     narrow

8    question regarding the stop-time rule and does not “void

9    jurisdiction in cases in which an NTA omits a hearing time or

10   place.”    Banegas Gomez v. Barr, 

922 F.3d 101

, 110 (2d Cir.

11   2019)    (emphasis     in    original).           As   we   have   noted,     the

12   regulation vesting jurisdiction does not require an NTA to

13   specify the time and date of the initial hearing, “at least

14   so long as a notice of hearing specifying this information is

15   later sent to the alien.”

Id. at 112. 16

         Although Lin’s 2005 NTA did not specify the date and time

17   of her initial hearing, she unquestionably received notice of

18   her    hearings   at   which      she    appeared.          Therefore,      Lin’s

19   argument that her NTA was insufficient to commence removal

20   proceedings is foreclosed by Banegas 

Gomez, 922 F.3d at 110

,

21   112.
                                             4
1       For the foregoing reasons, the petition for review is

2   DENIED.

3                        FOR THE COURT:
4                        Catherine O’Hagan Wolfe,
5                        Clerk of Court




                               5
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