         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
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     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:___________________________




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