         09-3163-ag
         Lin v. Holder
                                                                                         BIA
                                                                                 A072 473 979
                          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 20 th day of July, two thousand ten.
 5
 6       PRESENT:
 7                REENA RAGGI,
 8                RICHARD C. WESLEY,
 9                GERARD E. LYNCH,
10                     Circuit Judges.
11       _________________________________________
12
13       YI QUO LIN, a.k.a. ZI GUO LIN,
14       a.k.a. YI GUO LIN,
15                Petitioner,
16
17                       v.                                      09-3163-ag
18                                                               NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _________________________________________
23
24       FOR PETITIONER:                Joe Zhenghong Zhou, Flushing,
25                                      New York.
26
27       FOR RESPONDENT:                Tony West, Assistant Attorney
28                                      General; John C. Cunningham, Senior
29                                      Litigation Counsel; Claire L.
30                                      Workman, Trial Attorney, Office of
31                                      Immigration Litigation, United
32                                      States Department of Justice,
33                                      Washington, D.C.
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        Petitioner Yi Quo Lin, a native and citizen of the

6    People’s Republic of China, seeks review of the June 29,

7    2009, order of the BIA denying his motion to reopen.     In re

8    Lin, No. A072 473 979 (B.I.A. June 29, 2009).    We review the

9    BIA’s denial of a motion to reopen for abuse of discretion.

10   See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).      We

11   assume the parties’ familiarity with the underlying facts

12   and procedural history of the case.

13       A motion to reopen must generally be filed no later

14   than 90 days after the date on which the final

15   administrative decision was rendered in the proceedings

16   sought to be reopened and only one such motion may be filed.

17   8 C.F.R. § 1003.2(c)(2).   There is no dispute that Lin’s

18   third motion to reopen, filed in December 2008, was both

19   numerically barred and untimely.   See id.

20       The BIA did not abuse its discretion in declining to

21   equitably toll the time period for Lin to file his motion to

22   reopen because he failed to demonstrate that he exercised

23   due diligence in pursuing reopening of his removal


                                   2
1    proceedings.     See Cekic v. INS, 435 F.3d 167, 170 (2d Cir.

2    2006); see also Rashid v. Mukasey, 533 F.3d 127, 131 (2d

3    Cir. 2008).     In fact, Lin does not claim to have taken any

4    action in his removal proceedings for more than four years

5    between the BIA’s June 2001 denial of his first motion to

6    reopen and April 2006, when he contacted his current

7    counsel.     See Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d

8    Cir. 2007).

9        Although Lin expresses his claim as a violation of his

10   due process rights, we note that he has no due process right

11   in seeking a discretionary grant of a motion to reopen.        Cf.

12   Yuen Jin v. Mukasey, 538 F.3d 143, 156-57 (2d Cir. 2008)

13   (holding that “an alien who has already filed one asylum

14   application, been adjudicated removable and ordered

15   deported, and who has nevertheless remained in the country

16   illegally for several years, does not have a liberty or

17   property interest in a discretionary grant of asylum”); see

18   also Gomez-Palacios v. Holder, 560 F.3d 354, 361 n.2 (5th

19   Cir. 2009); Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir.

20   2008).     Regardless, Lin has filed and had adjudicated an

21   asylum application and three motions to reopen, two of which

22   raised his ineffective assistance of counsel claim, and has

23   thus received ample process.     See Yuen Jin, 538 F.3d at 157.

                                     3
1        Finally, because Lin does not challenge the BIA’s

2    findings that: (1) he failed to offer new evidence

3    supporting his claim that his wife underwent a forced

4    sterilization; (2) he did not establish changed country

5    conditions in China; (3) it does not have jurisdiction over

6    his pending application for adjustment of status; and (4) he

7    failed to show that sua sponte reopening of his proceedings

8    was warranted, we do not address those portions of the BIA’s

9    opinion.

10       For the foregoing reasons, the petition for review is

11   DENIED.    As we have completed our review, any stay of

12   removal that the Court previously granted in this petition

13   is VACATED, and any pending motion for a stay of removal in

14   this petition is DISMISSED as moot. Any pending request for

15   oral argument in this petition is DENIED in accordance with

16   Federal Rule of Appellate Procedure 34(a)(2), and Second

17   Circuit Local Rule 34.1(b).

18                                 FOR THE COURT:
19                                 Catherine O’Hagan Wolfe, Clerk
20
21




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