Wan Lin v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 24 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WAN PING LIN, AKA Wen-Bin Lin, No. 19-71623
Petitioner, Agency No. A072-968-966
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 17, 2023**
Before: CLIFTON, R. NELSON, and BRESS, Circuit Judges.
Wan Ping Lin, a native and citizen of China, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen
exclusion proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review
for abuse of discretion the denial of a motion to reopen. Najmabadi v. Holder, 597
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
F.3d 983, 986 (9th Cir. 2010). We deny the petition for review.
Lin’s contention that the agency lacked jurisdiction over his proceedings
under Pereira v. Sessions, 138 S. Ct. 2105 (2018), fails. See 8 U.S.C. § 1226(a)
(1988) (information regarding conduct of exclusion proceedings, referring to
regulations); 8 C.F.R. § 1240.30 (“An exclusion proceeding is commenced by the
filing of Form I-122 with the Immigration Court, and an alien is considered to be
in exclusion proceedings only upon such filing.”); see also Matter of J-L-L-, 28 I.
& N. Dec. 684, 685 (BIA 2023) (“Neither [governing] statute, nor applicable
implementing regulations at the time, required that a Form I-122 include the time
and place of the initial hearing.”); United States v. Bastide-Hernandez, 39 F.4th
1187, 1188, 1193 (9th Cir. 2022) (en banc) (lack of hearing information in notice
to appear does not deprive immigration court of subject matter jurisdiction).
Because Lin does not challenge the BIA’s alternative denial of his motion to
reopen as a matter of discretion, this issue is waived and provides an alternative
basis for denying the petition. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-
80 (9th Cir. 2013).
PETITION FOR REVIEW DENIED.
2 19-71623