Xua Hua Lin v. Holder , 356 F. App'x 448 ( 2009 )

08-6153-ag
Lin v. Holder
BIA
A070 891 183
A099 082 629
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
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 11 th day of December, two thousand nine.
5
6 PRESENT:
7 RALPH K. WINTER,
8 PIERRE N. LEVAL,
9 REENA RAGGI,
10 Circuit Judges.
11 _________________________________________
12
13 XUA HUA LIN, AKA YU HUA LIN,
14 HAO LIN,
15 Petitioners,
16
17 v. 08-6153-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL, *
21 Respondent.
22 _________________________________________
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
1 FOR PETITIONERS: Peter L. Quan, New York, New York.
2
3 FOR RESPONDENT: Tony West, Assistant Attorney
4 General; Susan K. Houser, Senior
5 Litigation Counsel; John J. W.
6 Inkeles, Trial Attorney, Office of
7 Immigration Litigation, United
8 States Department of Justice,
9 Washington, D.C.
10
11 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA”) decision, it is hereby
13 ORDERED, ADJUDGED, AND DECREED, that the petition for review
14 is DISMISSED in part and DENIED in part.
15 Petitioners Xua Hua Lin and Hao Lin, natives and
16 citizens of the People’s Republic of China, seek review of a
17 November 21, 2008 order of the BIA denying their motion to
18 reconsider. In re Xua Hua Lin and Hao Lin, Nos. A070 891
19 183, 099 082 629 (B.I.A. Nov. 21, 2008). We assume the
20 parties’ familiarity with the underlying facts and
21 procedural history in this case.
22 As an initial matter, contrary to the government’s
23 contention, petitioners exhausted in their motion to
24 reconsider before the BIA their argument that the
25 Immigration Judge (“IJ”) had an affirmative duty to inform
26 Xua Hua Lin of his potential eligibility for cancellation of
27 removal and his ability to apply for such relief.
2
1 Therefore, we consider such argument exhausted. See Lin
2 Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d
3 Cir. 2007). The government correctly argues, however, that
4 petitioners failed to exhaust in their motion to reconsider
5 their argument that the BIA’s prior decision was erroneous
6 insofar as it affirmed the IJ’s decision denying their
7 application for asylum, withholding of removal, and relief
8 under the Convention Against Torture (“CAT”). See 8 U.S.C.
9 § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.
10 2006) (recognizing that the jurisdictional exhaustion rule
11 is absolute with respect to the requirement that the alien
12 must raise before the agency each category of relief
13 subsequently raised in this Court). Moreover, we lack
14 jurisdiction to consider any direct challenge to the
15 agency’s underlying denial of that relief. See 8 U.S.C.
16 § 1252(b)(1); see also Malvoisin v. INS, 268 F.3d 74, 75 (2d
17 Cir. 2001); Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d
18 83, 90 (2d Cir. 2001). We dismiss the petition for review
19 to that extent.
20 We review the BIA’s denial of a motion to reopen and
21 reconsider for abuse of discretion. Kaur v. BIA, 413 F.3d
22 232, 233 (2d Cir. 2005) (per curiam); Jin Ming Liu v.
3
1 Gonzales, 439 F.3d 109, 111 (2d Cir. 2006). “An abuse of
2 discretion may be found . . . where the [BIA’s] decision
3 provides no rational explanation, inexplicably departs from
4 established policies, is devoid of any reasoning, or
5 contains only summary or conclusory statements; that is to
6 say, where the Board has acted in an arbitrary or capricious
7 manner.” Ke Zhen Zhao, 265 F.3d at 93 (internal citations
8 omitted). The BIA did not abuse its discretion in denying
9 petitioners’ motion.
10 Contrary to petitioners’ contention, the BIA did not
11 ignore their argument that the IJ had an obligation to
12 inform them that Xua Hua Lin was potentially eligible for
13 cancellation of removal. Indeed, the BIA acknowledged and
14 reasonably rejected that argument, noting that petitioners
15 were represented by counsel throughout their proceedings and
16 that counsel had implied that any failure to apply for
17 cancellation of removal was a tactical decision to avoid
18 unnecessary delays and not because they were unaware of the
19 availability of such relief. See Ke Zhen Zhao, 265 F.3d at
20 93.
21 Similarly, there is no merit to petitioners’ argument
22 that the BIA erroneously treated their motion to reconsider
4
1 as a motion to reopen by requiring them to submit an
2 application for cancellation of removal. The BIA reasonably
3 construed their motion as seeking reconsideration to the
4 extent it challenged the BIA’s underlying denial of their
5 application for asylum, withholding of removal, and CAT
6 relief, and reopening to the extent it sought remand for
7 consideration of cancellation of removal. See Jie Chen v.
8 Gonzales, 436 F.3d 76, 78-79 (2d Cir. 2006) (noting that the
9 BIA must construe motions not just on their captions but
10 also on their substance); see also Li Yong Cao v. U.S. Dep’t
11 of Justice, 421 F.3d 149, 156 (2d Cir. 2005) (providing that
12 a request to remand that relies on newly available evidence
13 is held to the substantive requirements of a motion to
14 reopen). As to petitioners’ motion to reopen, the BIA
15 properly denied it in part because it was not accompanied by
16 an application for cancellation of removal as required by
17 the agency’s regulations. See 8 C.F.R. § 1003.2(c)(1) (“A
18 motion to reopen proceedings for the purpose of submitting
19 an application for relief must be accompanied by the
20 appropriate application for relief and all supporting
21 documentation.”).
22 Finally, because we do not have jurisdiction to review
5
1 the agency’s denial of an application for cancellation of
2 removal based on the alien’s failure to establish
3 “exceptional and extremely unusual hardship,” 8 U.S.C.
4 § 1252(a)(2)(B); see also Barco-Sandoval v. Gonzales, 516
5 F.3d 35, 39 (2d Cir. 2008) (recognizing that the Court lacks
6 jurisdiction to review the factual determinations underlying
7 the agency’s conclusion that an alien has not demonstrated
8 “exceptional and extremely unusual hardship”), we lack
9 jurisdiction to consider the agency’s hardship finding in
10 the motion to reopen context. See Durant v. INS, 393 F.3d
11 113, 115-16 (2d Cir. 2004) (“While final orders of removal
12 and orders denying motions to reopen are treated as separate
13 final orders and require separate petitions for review, . .
14 . these orders are sufficiently connected that permitting
15 review of a motion to reopen when § 1252(a)(2)(C) bars
16 review of the final order of removal would provide an
17 improper backdoor method of challenging a removal order.”);
18 see also Alzainati v. Holder, 568 F.3d 844, 847-50 (10th
19 Cir. 2009) (finding that the Court lacked jurisdiction to
20 review the BIA’s denial of a motion to reopen that was based
21 on the merits of the “exceptional and extremely unusual
22 hardship” issue). Therefore, we lack jurisdiction to
6
1 consider petitioners’ challenge to the BIA’s refusal to
2 reopen their proceedings in order for them to pursue an
3 application for cancellation of removal and we dismiss the
4 petition for review to that extent.
5 For the foregoing reasons, the petition for review is
6 DISMISSED in part and DENIED in part. As we have completed
7 our review, any stay of removal that the Court previously
8 granted in this petition is VACATED, and any pending motion
9 for a stay of removal in this petition is DISMISSED as moot.
10 Any pending request for oral argument in this petition is
11 DENIED in accordance with Federal Rule of Appellate
12 Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
15
16
17 By:___________________________
7