Lin v. Wilkinson

19-884
Lin v. Wilkinson
BIA
A073 036 406
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 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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 25th day of February, two thousand twenty-one.
5
6 PRESENT:
7 DENNIS JACOBS,
8 GUIDO CALABRESI,
9 JOSÉ A. CABRANES,
10 Circuit Judges.
11 _____________________________________
12
13 CHANG YAN LIN,
14 Petitioner,
15
16 v. 19-884
17 NAC
18 ROBERT M. WILKINSON, ACTING
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent. 1
21 _____________________________________
22
23 FOR PETITIONER: Vlad Kuzmin, Esq., New York, NY.
24
25 FOR RESPONDENT: [VACANT], Acting Assistant
26 Attorney General; Leslie McKay,
1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting
Attorney General Robert M. Wilkinson is automatically substituted for
former Acting Attorney General Jeffrey A. Rosen as Respondent.
1 Senior Litigation Counsel,
2 Madeline Henley, Attorney; Office
3 of Immigration Litigation, United
4 States Department of Justice,
5 Washington, DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DISMISSED.
10 Petitioner Chang Yan Lin, a native and citizen of the
11 People’s Republic of China, seeks review of a March 6, 2019,
12 decision of the BIA denying his third motion to reopen his
13 deportation proceedings. In re Chang Yan Lin, No. A073 036
14 406 (B.I.A. March 6, 2019). We assume the parties’
15 familiarity with the underlying facts and procedural history.
16 We review the BIA’s denial of a motion to reopen for
17 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
18 Cir. 2006). The BIA did not abuse its discretion in denying
19 Lin’s motion to reopen. It is undisputed that Lin’s 2018
20 motion was untimely and number barred because the BIA affirmed
21 Lin’s deportation order in June 2002 and he filed two prior
22 motions to reopen. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); see
23 also 8 C.F.R. § 1003.2(c)(2). Lin’s approved visa petition
24 and purported eligibility to adjust status do not implicate
2
1 an exception to the time and number limitations. See Matter
2 of Yauri, 25 I. & N. Dec. 103, 105 (BIA 2009) (holding “that
3 untimely motions to reopen to pursue an application for
4 adjustment of status . . . do not fall within any of the
5 statutory or regulatory exceptions to the time limits for
6 motions to reopen before the Board”). Accordingly, the only
7 remaining basis for reopening was the BIA’s authority to
8 reopen sua sponte despite the time and number limitations.
9 See 8 C.F.R. § 1003.2(a); Mahmood v. Holder, 570 F.3d 466,
10 469 (2d Cir. 2009) (“Because Mahmood’s untimely motion to
11 reopen was not excused by any regulatory exception, his motion
12 to reopen could only be considered upon exercise of the
13 Agency’s sua sponte authority”). However, the BIA’s decision
14 not to exercise that authority is “entirely discretionary”
15 and beyond the scope of our review. Ali, 448 F.3d at 518.
16 Lin’s res judicata arguments are not properly before us
17 because he did not assert a res judicata claim before the
18 agency. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d
19 104, 122 (2d Cir. 2007) (generally requiring issues to be
20 raised before the BIA); see also Totalplan Corp. of Am. v.
21 Colborne, 14 F.3d 824, 832 (2d Cir. 1994) (“Because res
3
1 judicata is an affirmative defense, it should have been
2 asserted as soon as it was available . . . Appellees’ failure
3 to raise res judicata until appeal constitutes waiver of that
4 defense.”).
5 For the foregoing reasons, the petition for review is
6 DISMISSED. All pending motions and applications are DENIED
7 and stays VACATED.
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe,
10 Clerk of Court
4