                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-14-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2805




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                                                           NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ____________

                                 No. 04-2805
                                ____________

                                YUN HUI LIN,

                                       Petitioner

                                       v.

                        ATTORNEY GENERAL
                 OF THE UNITED STATES OF AMERICA,*

                                     Respondent
                                ____________

                        On Petition for Review from an
                   Order of the Board of Immigration Appeals
                           (Board No. A75-565-956)
                                 ____________

                  Submitted Under Third Circuit LAR 34.1(a)
                               April 1, 2005

             Before: ALITO, SMITH and FISHER, Circuit Judges.

                             (Filed: April 14, 2005)
                                 ____________

                          OPINION OF THE COURT
                               ____________




*
    Caption amended pursuant to Rule 43(c), Fed. R. App. Pro.
FISHER, Circuit Judge.

       Yun Hui Lin (“Lin”) petitions this Court to review the June 2, 2004 decision of the

Board of Immigration Appeals (“BIA”) which denied her motion to reconsider an in

absentia removal order issued by the Immigration Judge (“IJ”) in February 2003 under 8

U.S.C. § 1229a(b)(5)(A). The former INS charged Lin with removability as an alien who

entered the United States without inspection under I.N.A. § 212(a)(6)(A)(i), 8 U.S.C.

§ 1182(a)(6)(A)(i) (2000). Lin seeks asylum because she violated China’s one child

policy by having two children in China, was forced to abort her third pregnancy in China,

and believes that she will be targeted for sterilization if she returns to China. For the

reasons that follow, we will deny the petition for review.

                                              I.

       Because we write only for the parties, we set forth only those facts necessary to our

discussion.

       This case has a lengthy procedural history, in which the IJ issued two in absentia

removal orders and twice found no “exceptional circumstances” to explain Lin’s failure to

timely appear for her scheduled proceedings. An in absentia removal order may be

rescinded “if the alien demonstrates that the failure to appear was because of exceptional

circumstances.” 8 U.S.C. § 1229a(b)(5)(C). Lin successfully challenged the first in

absentia removal order and obtained a reopening from the BIA. In the first challenge, the




                                              2
BIA found “exceptional circumstances” existed where Lin was late to the hearing due to

her attorney’s tardiness and handling of other matters before directing Lin to her hearing.

       Lin was tardy by nearly two hours for her second hearing, causing the issuance of a

second in absentia removal order. Lin’s motion to reopen that order is the subject of this

petition for review. Lin again asserts “exceptional circumstances” in that she first sought

to find her attorney at his office to no avail before proceeding to her hearing and, upon

her arrival at the courthouse, was detained in lengthy security lines.

       In February 2003, the IJ found that Lin’s reasons for her second failure to appear

did not amount to “exceptional circumstances” beyond her control, and denied the motion

to reopen. In February 2004, the BIA affirmed the IJ’s decision without opinion and

dismissed the appeal. Lin filed a motion to reconsider with the BIA, arguing that the IJ

improperly weighed the factors that caused Lin’s failure to appear, and that the BIA erred

in affirming the decision without opinion. In June 2004, the BIA denied reconsideration,

finding no factual or legal errors in either the IJ decision or the BIA’s earlier affirmance.

This petition for review followed.

                                              II.

       We have jurisdiction under 8 U.S.C. § 1252 to review final orders of removal.

Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir. 2001). We review the BIA’s denial of a

motion to reopen or reconsider for abuse of discretion. INS v. Doherty, 502 U.S. 314, 323

(1992). Where the BIA affirms without opinion the findings of the IJ, we review the IJ’s



                                              3
opinion and scrutinize its reasoning. Dia v. Ashcroft, 353 F.3d 228 (3d Cir. 2003) (en

banc). Additionally, principles of Chevron deference are applicable in the immigration

context. Abdulai, 239 F.3d at 551 (citing INS v. Aguirre-Aguirre, 526 U.S. 415, 424

(1999)).

       The scope of review of a removal order entered in absentia is limited by 8 U.S.C.

§ 1229a(b)(5)(D) to: (1) the validity of the notice provided to the alien, (2) the reasons

for the alien’s not attending the proceeding, and (3) whether or not the alien is removable.

The first and third issues have been conceded by Lin, confining this review to her reasons

for failing to attend the second hearing.

                                             III.

       We must determine whether the IJ abused his discretion in denying Lin’s second

motion to reopen removal proceedings. Under 8 U.S.C. § 1229a(b)(5)(A), any alien who

“does not attend a proceeding under this section, shall be ordered removed in absentia if

the Service establishes by clear, unequivocal and convincing evidence that the written

notice was so provided and that the alien is removable.” Section 1229a(b)(5)(C) further

provides that such an order may be rescinded “upon a motion to reopen filed within 180

days after the date of the order of removal if the alien demonstrates that the failure to

appear was because of exceptional circumstances.” “Exceptional circumstances” are

circumstances beyond the control of the alien such as the serious illness of the alien or




                                              4
serious illness or death of the spouse, child or parent of the alien, but do not include less

compelling circumstances. 8 U.S.C. § 1229a(e)(1).

       The BIA’s reopening of Lin’s case after the first in absentia removal order

amplifies that “exceptional circumstances” may exist for reasons other than serious

illness. As the BIA explained, the totality of circumstances may be applied to determine

whether “exceptional circumstances” exist and encompass factors such as the

respondent’s diligence, the unexpected and unavoidable nature of the circumstances, the

extent of the lateness, and evidentiary support. The BIA found that Lin demonstrated

diligence by her arrival at the courthouse at 9:00 a.m. and good faith by waiting for her

attorney, who was late and attended other matters until 10:50 a.m. when he took Lin to

her hearing. But as to Lin’s second motion to reopen, both the IJ and the BIA found such

diligence lacking, where Lin did not arrive at the building until 10:15 a.m. for a 9:00 a.m.

hearing and was further delayed by security lines for entry to the courthouse, which were

neither unexpected nor unavoidable.

       Where a statute is silent or ambiguous with respect to a specific issue, the review is

limited to determining whether the agency’s answer is based on a permissible

construction of the statute. Abdulai, 239 F.3d at 551 (citing Chevron U.S.A. Inc. v.

Natural Resources Defense Council Inc., 467 U.S. 837, 843 (1984)). This case turns on

the meaning of “exceptional circumstances,” a term inherently incapable of absolute

definition. Although Lin argues that the IJ did not give proper weight to her inability to



                                              5
speak English, it is a permissible interpretation of the statute to find that Lin’s reasons for

not attending the proceeding were neither compelling nor beyond her control, to

constitute “exceptional circumstances.” Accordingly, there was no abuse of discretion.

       Aliens facing removal are entitled to Due Process under the United States

Constitution. Abdulai, 239 F.3d at 549. Due Process requires: (1) factfinding based on a

record produced before the decisionmaker and disclosed to the alien, (2) the opportunity

to make arguments on her own behalf, and (3) the right to an individualized determination

of her interests. Id. at 549. The denial of Lin’s motion to reopen did not implicate any of

these rights.

       We have considered all of the arguments of the parties and conclude that no

further discussion is necessary. In light of the foregoing, we will deny Lin’s petition for

review.




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