         07-5406-ag
         Lin v. Holder
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A073 134 465


                          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 27th day of October, two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                JON O. NEWMAN,
10                PIERRE N. LEVAL,
11                     Circuit Judges.
12       _________________________________________
13
14       DIAN WEI LIN,
15                Petitioner,
16
17                       v.                                       07-5406-ag
18                                                                NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,*
21                Respondent.
22       _________________________________________


                  *
                Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), Attorney General Eric H. Holder, Jr., is
         automatically substituted for former Attorney General
         Michael B. Mukasey as respondent in this case.
         08232010-24
 1   FOR PETITIONER:           Douglas B. Payne, New York, New
 2                             York.
 3
 4   FOR RESPONDENT:           Michael F. Hertz, Acting Assistant
 5                             Attorney General; Douglas E.
 6                             Ginsburg, Senior Litigation Counsel;
 7                             Lyle D. Jentzer, Senior Litigation
 8                             Counsel, Office of Immigration
 9                             Litigation, United States Department
10                             of Justice, Washington, D.C.
11
12           UPON DUE CONSIDERATION of this petition for review of a
13   Board of Immigration Appeals (“BIA”) decision, it is hereby

14   ORDERED, ADJUDGED, AND DECREED, that the petition for review

15   is DENIED.

16           Dian Wei Lin, a native and citizen of China, seeks

17   review of a November 7, 2007, BIA order affirming the

18   February 28, 2007, decision of Immigration Judge Sandy K.

19   Hom, which denied his motion to reopen.     In re Dian Wei Lin,

20   No. A073 134 465 (B.I.A. Nov. 7, 2007), aff’g No. A073 134

21   465 (Immig. Ct. N.Y. City Feb. 28, 2007).     Lin’s motion to

22   reopen was based on his claim that he fears persecution on

23   account of the birth of his U.S. citizen children in

24   violation of China’s family planning policy.     For largely

25   the same reasons as this Court set forth in Jian Hui Shao v.

26   Mukasey, 546 F.3d 138 (2d Cir. 2008), we find no error in

27   the agency’s denial of Lin’s motion to reopen.     See id. at

28   168-72.


     08232010-24                     2
 1           As the government contends, Lin’s arguments concerning

 2   the IJ’s underlying in absentia exclusion order are

 3   unavailing.       To the extent Lin argues that he was not

 4   required to seek rescission in order to pursue reopening,

 5   the BIA’s decision is not to the contrary; indeed, it

 6   explicitly held that rescission was not required.       See

 7   Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006)

 8   (finding that a motion that seeks rescission of an in

 9   absentia order is treated as distinct from a motion to

10   reopen proceedings based on new evidence); see also Matter

11   of A-N- & R-M-N-, 22 I & N Dec. 953, 956 (B.I.A. 1999)

12   (holding that a movant need not show reasonable cause for

13   his failure to appear at a hearing in order to reopen his

14   immigration proceedings if the basis of the movant’s motion

15   is not that the IJ erred in ordering him excluded in

16   absentia).       To the extent Lin argues that the BIA failed to

17   consider whether he received proper notice of the

18   consequences of failing to appear, it was under no

19   obligation to do so because Lin never suggested before the

20   IJ that he did not receive proper notice.

21           For the foregoing reasons, this petition for review is

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

23   removal that the Court previously granted in this petition

     08232010-24                       3
1   is VACATED, and any pending motion for a stay of removal in

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

3   oral argument in this petition is DENIED in accordance with

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

5   Circuit Local Rule 34.1(b).

6                                 FOR THE COURT:
7                                 Catherine O’Hagan Wolfe, Clerk
8




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