                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-6-2006

Lin v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1478




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 05-1478
                                   ________________

                                        XIN LIN,
                                               Petitioner

                                            v.

                            ATTORNEY GENERAL OF
                              THE UNITED STATES,
                                           Respondent
                      ____________________________________

                           On Review of a Decision of the
                            Board of Immigration Appeals
                              (Agency No. 29-816-551)
                 Immigration Judge: Honorable Donald Vincent Ferlise
                    ____________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 3, 2006

     Before: SLOVITER, SMITH AND VAN ANTWERPEN, CIRCUIT JUDGES

                                  (Filed: April 6, 2006)

                              _______________________
                                     OPINION
                              _______________________

PER CURIAM

      Petitioner, Xin Lin, petitions for review of a final order of the Board of

Immigration Appeals (“BIA”). For the reasons that follow, we will deny the petition.
                                             I.

       Lin is a native and citizen of the People’s Republic of China who entered the

United States without inspection in November 1987. Lin was placed in deportation

proceedings on June 25, 1995, when he was personally served with an Order to Show

Cause (“OSC”) and a copy was sent to his attorney of record. Apparently, the contents of

the OSC were not read to Lin in a language he understands. Lin further alleged that he

had been given erroneous advice from a “travel agency” regarding his obligation to attend

the hearing. As a result, and despite the fact that the time and date of the hearing were

contained in the OSC, Lin failed to appear before the Immigration Judge (“IJ”) on

December 13, 1995 as directed and was ordered deported in absentia. No appeal was

filed. On July 11, 2002, over six and one-half years later, Lin filed a motion to

“rescind/reopen” deportation proceedings. The IJ denied the motion.

       Lin’s appeal was dismissed by the BIA in an Order dated January 19, 2005. The

BIA concluded that Lin’s motion was untimely filed, and that Lin’s case did not warrant

an exercise of a discretionary sua sponte reopening. The BIA likewise affirmed the IJ’s

denial of Lin’s motion to reopen in order to reapply for asylum and withholding of

deportation based on his marriage and the birth of his two children in this country. The

BIA noted that Lin’s motion was based merely on changes in his personal circumstances

which caused him to fear harm on account of China’s coercive population control

methods. Finally, the BIA found Lin’s case factually distinguishable from those cases in

which the Board exercised its sua sponte authority to reopen proceedings in order to hear

claims involving China’s coercive population control methods, because those cases

involved coercive population control claims which were substantively denied on appeal

                                             2
prior to a fundamental change in the law. Lin presented no such claim, and, in fact, his

initial asylum claim was based on religion. Accordingly, the BIA concluded that Lin did

not fall within that category of applicants entitled to an exception to the regulatory filing

requirements. This timely petition for review followed.

                                              II.

       After careful review, we must conclude that the BIA did not abuse its discretion in

denying Lin’s motion to reopen. See Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001).

As the Supreme Court has stated, the regulations “plainly disfavor” such motions. INS v.

Abudu, 485 U.S. 94, 110 (1988). We review the Board’s denial of a motion to reopen

with “broad deference” to its decision. Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d

Cir. 2003). Thus, in order to succeed on the petition for review, Lin must show that the

BIA’s discretionary decision was somehow arbitrary, irrational, or contrary to law. See

Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994). Lin has failed to make such a showing.

       Although the rescission requirements prescribed by INA § 242B(c)(3) are not

applicable to Lin since he did not receive oral warnings of the consequences of failing to

appear at a deportation hearing pursuant to INA § 242B(a), his motion to reopen was still

subject to the regulatory requirements set forth in 8 C.F.R. §§ 1003.2(c) and

1003.23(b)(3). See Matter of M-S-, 22 I&N Dec. 349 (BIA 1998). As the BIA correctly

concluded, Lin’s motion was untimely filed under § 1003.2(c)(2) by several years. Of

course, the regulation affords exceptions, such as where, inter alia, the order at issue was

entered in absentia under certain circumstances not relevant here, see § 1003.2(c)(3),

(c)(3)(i), or where there are “changed circumstances arising in the country of nationality

or in the country to which deportation has been ordered, if such evidence is material and

                                              3
was not available and could not have been discovered or presented at the previous

hearing.” Id. (c)(3)(ii). In addition, as noted in its Order, the BIA has the authority to sua

sponte reopen any case at any time. See § 1003.2(a).

       Lin offers nothing to support the contention that the BIA abused its discretion by

failing to reopen proceedings because of the change in his personal circumstances, i.e.,

the subsequent births of his U.S.-born son in 1996 and his daughter in 2001. The BIA is

correct in its conclusion that the only applicable exception to Lin’s untimely filed reopen

motion is that provided for by § 1003.2(c)(3)(ii) for changed circumstances arising in the

country of his nationality. Lin, however, does not allege any changed circumstances in

China or even in its family planning policy; rather, he contends that a change in his

personal situation now causes him to fear application of that policy should he be

deported. Citing to Guan v. Ashcroft, 345 F.3d 47 (2d Cir. 2003), wherein the Second

Circuit Court of Appeals found that changed personal circumstances arising in the United

States are not within § 1003.2(c)(3)(ii)’s exception, the BIA refused Lin’s invitation to

sua sponte reopen his proceedings to hear his claim involving China’s coercive

population control methods. See also Zheng v. U.S. Dept. of Justice, 416 F.3d 129, 130

(2d Cir. 2005). The BIA recognized this Court’s decision in Guo v. Ashcroft, 386 F.3d

556 (3d Cir. 2004), wherein reopening was found to be warranted given the alien’s

personal change in circumstances (i.e., the birth of one child and a verified second

pregnancy) and documented evidence sufficient to establish prima facie eligibility for

asylum. However, as correctly noted by the BIA, Guo involved a timely filed reopen

motion – a motion not limited by the “changed country conditions” exception of §

1003.2(c)(3)(ii). Unfortunately for Lin, that distinction is a determinative one.

                                              4
       We likewise can find no abuse of discretion on the part of the BIA in concluding

that a favorable exercise of its discretion was not warranted given Lin’s failure to

demonstrate the exercise of due diligence in either contacting the “travel agency” about a

rescheduling date, in obtaining legal advice, or in seeking to otherwise learn of the

outcome of his deportation proceedings in the six years between the entry of the IJ’s

deportation order and the filing of his motion to reopen. Additionally, as noted in its

Order, the BIA’s discretion to reopen a case sua sponte is “not a general remedy...but...an

extraordinary remedy reserved for truly exceptional situations.” See BIA’s Order of

1/19/05 at 2, citing In re G-D-, 22 I. & N. Dec. 1132, 1133-34 (BIA 1999). The lack of a

showing of due diligence equally supported the BIA’s determination that equitable tolling

was not warranted.

       Finally, Lin fares no better with an argument that the BIA should have exercised

its sua sponte authority to reopen the proceedings under the policy announced in In re X-

G-W-, 22 I. & N. Dec. 71 (BIA 1998). Aside from the fact that this policy has been

discontinued, see In re G-C-L-, 23 I&N Dec. 359, 362 (BIA 2002), the policy applied

only “where the alien had previously presented persuasive evidence of persecution based

on China’s ‘one couple, one child’ policy” and the BIA “previously denied asylum based

on” cases holding that enforcement of this policy did not constitute persecution. Id. at 74.

Lin’s initial asylum claim was based on religion, not on China’s coercive population

control methods.

                                            III.

       Accordingly, for the foregoing reasons, we will deny the petition for review. Lin’s

motion to be exempt from oral argument is denied as moot.

                                             5
