         10-1480-ag
         Lin v. Holder
                                                                                       BIA
                                                                               A077 296 727
                          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 19th day of July, two thousand eleven.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                JOSÉ A. CABRANES,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       HUI JIN LIN, also known as HURJIN LIN,
14                Petitioner,
15
16                       v.                                     10-1480-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Thomas V. Massucci, New York, NY.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Leslie McKay, Assistant
27                                     Director; Margot L. Carter, Trial
28                                     Attorney, Office of Immigration
29                                     Litigation, Civil Division, United
30                                     States Department of Justice,
31                                     Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   decision of the Board of Immigration Appeals (“BIA”), it is

 3   hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

 4   review is DENIED.

 5       Hui Jin Lin, a native and citizen of China, seeks

 6   review of a March 22, 2010, order of the BIA denying her

 7   motion to reconsider.   In re Hui Jin Lin, No. A077 296 727

 8   (B.I.A. March 22, 2010).   We assume the parties’ familiarity

 9   with the underlying facts and procedural history of this

10   case.

11       Our review is limited to the BIA’s March 2010 denial of

12   reconsideration, as Lin’s petition for review is timely

13   filed only as to that order.   See, e.g., Stone v. INS, 514

14   U.S. 386, 405 (1995) (holding that the Courts of Appeals

15   must treat each petition for review as challenging only the

16   BIA decision from which it was timely filed).

17       Although we generally lack jurisdiction to review a

18   decision of the BIA not to reopen or reconsider proceedings

19   sua sponte, as such a decision is “entirely discretionary,”

20   see Azmond Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.

21   2006), because Lin’s motion for reconsideration was timely

22   filed from the denial of reopening, it is a statutory motion


                                    2
 1   to reconsider, the denial of which we generally review for

 2   abuse of discretion.   See 8 U.S.C. § 1229a(c)(6)(A)-(C);

 3   8 C.F.R. § 1003.2(b)(2); Luna v. Holder, 637 F.3d 85, 96 (2d

 4   Cir. 2011); Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005)

 5   (per curiam). As discussed below, however, the BIA did not

 6   abuse its discretion by denying reconsideration.

 7       Lin argues that the BIA abused its discretion in

 8   denying reconsideration because the IJ’s frivolous finding

 9   was erroneous and because the BIA did not meaningfully

10   address the problematic aspects of that finding.   These

11   arguments are unavailing.   On reconsideration, the BIA was

12   not required to revisit the frivolous finding, because it

13   had previously considered and rejected the same arguments in

14   reviewing Lin’s previous motion.    See Jin Ming Liu v.

15   Gonzales, 439 F.3d 109, 111 (2d Cir. 2006) (holding that the

16   BIA does not abuse its discretion by denying a motion to

17   reconsider where the motion merely repeats arguments that

18   the BIA has previously rejected).   In any case, the BIA did

19   not abuse its discretion, because the record contained

20   multiple warnings to Lin regarding the permanent bar to

21   relief that would result from a frivolous application, Lin

22   had repeated opportunities to correct inaccuracies and


                                   3
 1   explain inconsistencies, and the IJ listed multiple material

 2   inconsistencies and instances of implausibility in Lin’s

 3   testimony.    Accordingly, the IJ complied with the law

 4   regarding frivolous findings that was in effect at the time

 5   of his decision, 8 C.F.R. § 208.20 (2000), and the BIA

 6   properly affirmed his decision.    The regulatory requirements

 7   for a frivolous finding were therefore met, and Lin should

 8   not be permitted to seek application of a new guideline that

 9   did not take effect until several years after she was

10   ordered removed.    See Wei Guang Wang v. BIA, 437 F.3d 270,

11   274 (2d Cir. 2006); see also Alvarenga-Villalobos v.

12   Ashcroft, 271 F.3d 1169, 1172-73 (9th Cir. 2001).

13       For the foregoing reasons, the petition for review is

14   DENIED.    Any pending request for oral argument in this

15   petition is DENIED in accordance with Federal Rule of

16   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

17   34.1(b).

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




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