Xiang Qin Lin v. Holder

11-4540 BIA
Lin v. Holder A029 816 393
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
4 New York, on the 21st day of August, two thousand twelve.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 GERARD E. LYNCH,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 XIANG QIN LIN,
14 Petitioner,
15
16 v. 11-4540
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Huiyue Qiu, Kerry Bretz, Bretz &
24 Coven, LLP, New York, NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Shelley R. Goad,
28 Assistant Director; Nancy K. Canter,
29 Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
33
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 Xiang Qin Lin, a native and citizen of the People’s
6 Republic of China, seeks review of the September 27, 2011
7 decision of the BIA denying his motion to reconsider. In re
8 Xiang Qin Lin, No. A029 816 393 (B.I.A. Sept. 27, 2011). We
9 assume the parties’ familiarity with the underlying facts
10 and procedural history.
11 As Lin timely petitioned for review of only the BIA’s
12 denial of his motion for reconsideration, we are precluded
13 from considering the merits of the underlying motion to
14 reopen. See Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d
15 Cir. 2006). We also lack jurisdiction to consider Lin’s
16 argument regarding the propriety of his prior counsel’s
17 concession of deportability as it was not sufficiently
18 exhausted. See 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales,
19 462 F.3d 113, 117 (2d Cir. 2006).
20 We have reviewed the denial of Lin’s motion to
21 reconsider for abuse of discretion. See Jin Ming Liu, 439
22 F.3d at 111. A motion to reconsider must “specify the
23 errors of law or fact” in the challenged BIA decision and
24 “be supported by pertinent authority.” 8 U.S.C.
2
1 § 1229a(c)(6)(C); see also 8 C.F.R. § 1003.2(b)(1); Ke Zhen
2 Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 90 (2d Cir.
3 2001).
4 In requesting reconsideration, Lin asserted that the
5 BIA erred in failing to consider his argument that the
6 agency lacked jurisdiction to conduct his deportation
7 proceedings and thus should have reopened and terminated
8 those proceedings because, on an identical ground for
9 deportation, he had been placed in parallel deportation
10 proceedings that were later terminated. However, the BIA
11 did not abuse its discretion in denying reconsideration,
12 reasonably finding that the agency had jurisdiction because:
13 (1) jurisdiction vested with the Immigration Judge (“IJ”)
14 upon the filing of the Order to Show Cause in the New York
15 Immigration Court; (2) Lin’s appeal of the decision of the
16 New York Immigration Court vested jurisdiction with the BIA;
17 and (3) the regulations do not deprive the IJ or BIA of
18 jurisdiction when there is a separate removal proceeding.
19 See 8 C.F.R. §§ 3.1(b)(1)-(3), 3.14(a) (1996); see also id.20 §§ 1003.1(b)(1)-(3), 1003.14(a) (2012).
21 Although Lin also argues that he was paroled into the
22 United States and thus could not be found deportable, his
23 argument merely asserts error in the underlying order, not a
24 jurisdictional issue. Because Lin failed to identify an
3
1 error of fact or law in the BIA’s denial of his motion to
2 reopen, the BIA did not abuse its discretion in denying his
3 motion to reconsider. See 8 U.S.C. § 1229a(c)(6)(C); 8
4 C.F.R. § 1003.2(b)(1); Ke Zhen Zhao, 265 F.3d at 90.
5 For the foregoing reasons, the petition for review is
6 DENIED.
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
4