         13-1258
         Lin v. Holder
                                                                                       BIA
                                                                                  Videla, IJ
                                                                               A095 843 940
                           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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 18th day of June, two thousand fourteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                DEBRA ANN LIVINGSTON,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       DAN LIN,
14                       Petitioner,
15
16                       v.                                     13-1258
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                Bruno Joseph Bembi, Hempstead, NY.
24
25       FOR RESPONDENT:                Stuart F. Delery, Assistant Attorney
26                                      General; Stephen J. Flynn, Assistant
27                                      Director; Lynda A. Do, Attorney,
28                                      Office of Immigration Litigation,
29                                      United States Department of Justice,
30                                      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 is

 4   DENIED.

 5       Petitioner Dan Lin, a native and citizen of China, seeks

 6   review of a March 14, 2013 order of the BIA, dismissing her

 7   appeal from the July 31, 2012, decision of an Immigration

 8   Judge     (“IJ”),    which       pretermitted          asylum   and    granted

 9   withholding of removal.           In re Dan Lin, No. A095 843 940

10   (B.I.A. Mar. 14, 2013), aff’g No. A095 843 940 (Immig. Ct. New

11   York City July 31, 2012).         We assume the parties’ familiarity

12   with the underlying facts and procedural history in this case.

13       Under the circumstances of this case, we review the

14   decisions    of     both   the    IJ       and   BIA    “for    the   sake   of

15   completeness.”       See Zaman v. Mukasey, 514 F.3d 233, 237 (2d

16   Cir. 2008) (per curiam) (internal quotation marks omitted).

17   The applicable standards of review are well established.                     See

18   8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562

19   F.3d 510, 513 (2d Cir. 2009).

20       Contrary to Lin’s assertions, the BIA properly dismissed

21   her appeal because she waived her right to appeal from the

22   IJ’s decision.      See 8 C.F.R. § 1003.1(d)(2)(i)(G) (“A single

23   Board member or panel may summarily dismiss any appeal . . .

                                            2
 1   barred by an affirmative waiver of the right of appeal that is

 2   clear on the record.”). We have recognized that “accepting an

 3   IJ’s decision as final can serve as an effective waiver of

 4   appeal when the record of the interaction between the IJ and

 5   the alien fairly supports the conclusion that the alien or his

 6   counsel understood the nature of the waiver.” Ali v. Mukasey,

 7   525 F.3d 171, 174 (2d Cir. 2008).            At the hearing on July 31,

 8   2012, the IJ stated that he would grant withholding and then

 9   asked, “[W]ill the Government accept my decision and waive

10   appeal?”      AR 188.     After the attorney for the government

11   consented, the IJ asked Lin’s attorney if her client would do

12   likewise.      At this point, the court went off the record so

13   that    Lin    could    consult   with   her      attorney      about   the

14   consequences of waiving her appellate rights.             Lin’s counsel

15   then stated that Lin “agrees to accept this as a final

16   decision.”     AR 189.    Lin does not contend that her attorney

17   rendered ineffective assistance by improperly advising her of

18   the waiver’s consequences, and she has not complied with the

19   procedural requirements for alleging an ineffective assistance

20   claim under Matter of Lozada, 19 I&N Dec. 637 (B.I.A. 1988).

21   See Jian Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 46

22   (2d    Cir.   2005).     Therefore,    the    BIA’s   finding    that   Lin


                                        3
 1   knowingly and intelligently waived her appellate rights is

 2   supported     by     substantial    evidence.       See      8   U.S.C.

 3   § 1252(b)(4)(B) (noting that, on review, the agency’s factual

 4   findings are “conclusive unless any reasonable adjudicator

 5   would be compelled to conclude to the contrary”).

 6       Lastly, Lin’s contention that the BIA had continuing

 7   jurisdiction because it previously remanded her proceedings is

 8   misplaced.        The BIA was divested of jurisdiction when it

 9   remanded the case to a different IJ in 2007, as it did not did

10   not expressly retain jurisdiction in that order.            See Chupina

11   v. Holder, 570 F.3d 99, 103 (2d Cir. 2009) (per curiam)

12   (citing Matter of Patel, 16 I&N Dec. 600, 601 (B.I.A. 1978)).

13   In the course of the usual appeal, Lin would have been able to

14   challenge the reliance of the second IJ on the initial IJ’s

15   findings, see INS v. Chadha, 462 U.S. 919, 938 (1983) (noting

16   that final orders of removal include “all matters on which the

17   validity     of    the   final   order   is   contingent”    (citation

18   omitted)), but she waived her right to appeal.

19

20

21

22



                                        4
1       For the foregoing reasons, the petition for review is

2   DENIED.

3                             FOR THE COURT:
4                             Catherine O’Hagan Wolfe, Clerk
5
6




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