         09-4210-ag
         Lin v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A073 540 565
                                                                               A070 868 821
                              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 3 rd day of June, two thousand ten.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                RICHARD C. WESLEY,
 9                PETER W. HALL,
10                       Circuit Judges.
11       _______________________________________
12
13       XUE HUI LIN, YAN HONG LIN,
14                Petitioners,
15
16                       v.                                     09-4210-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., U.S. ATTORNEY
19       GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Gerald Karikari, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General, Civil Division, Anh-Thu P.
27                                     Mai-Windle, Senior Litigation
28                                     Counsel, Pegah Vakili, Trial
29                                     Attorney, Office of Immigration
30                                     Litigation, U.S. Department of
31                                     Justice, 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           Xue Hui Lin and Yan Hong Lin, natives and citizens of

6    China, seek review of the September 16, 2009, order of the

7    BIA affirming the October 17, 2007, decision of Immigration

8    Judge (“IJ”) Barbara A. Nelson denying their motion to

9    reopen, reconsider, and reinstate. 1   In re Xue Hui Lin, et

10   al., Nos. A073 540 565/A070 868 821 (B.I.A. Sept. 16, 2009),

11   aff’g Nos. A073 540 565/A070 868 821 (Immig. Ct. N.Y. City

12   Oct. 17, 2007).     We assume the parties’ familiarity with the

13   underlying facts and procedural history of the case.

14   I.     Scope of Review

15          As an initial matter, the arguments advanced in Lin’s

16   brief largely challenge the IJ’s underlying denial of his

17   application for asylum.     However, we are without

18   jurisdiction to consider Lin’s challenge to the IJ’s March

19   2006 decision.    See Ke Zhen Zhao v. U.S. Dep’t of Justice,



              1
               Xue Hui Lin’s asylum application included his wife,
          Yan Hong Lin, as a derivative applicant. The IJ’s
          decision primarily discussed Xue Hui Lin’s eligibility
          for asylum and related relief. Therefore, for the sake
          of clarity, this order refers only to Xue Hui Lin as
          “Lin” throughout.

                                     2
1    265 F.3d 83, 89-90 (2d Cir. 2001).      Instead, we limit our

2    review to the BIA’s September 2009 decision affirming the

3    IJ’s October 2007 decision.    Moreover, we lack jurisdiction

4    to review Lin’s challenge to the BIA’s decision to affirm

5    without opinion the IJ’s decision.      See Kambolli v Gonzales,

6    449 F.3d 454, 463 (2d Cir. 2006) (finding that this Court

7    “lack[s] jurisdiction to review decisions by BIA members to

8    affirm IJ decisions without opinion”).

9    II.   Motion to Reopen and Reconsider

10         Under the circumstances of this case, we review the

11   IJ’s decision alone. 2   See Shunfu Li v. Mukasey, 529 F.3d

12   141, 146 (2d Cir. 2008).    We review the agency’s denial of a

13   motion to reopen and reconsider for abuse of discretion.

14   See Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir.

15   2006); Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per

16   curiam).

17         In denying Lin’s motion to reopen and reconsider, the

18   IJ found that it was untimely filed because “the Court’s

19   March 22, 2006 decision [was] the final administrative



             2
             In his brief before us, Lin does not challenge: (1)
       the IJ’s determination that he failed to present new and
       previously unavailable evidence regarding the IJ’s
       adverse credibility determination; and (2) the IJ’s
       finding that she lacked jurisdiction to review the BIA’s
       dismissal of his merits appeal as untimely filed.

                                    3
1    order.”     See 8 C.F.R. § 1003.23(b) (providing that a motion

2    to reopen before an IJ must be filed no later than 90 days

3    after the date on which the final administrative decision

4    was rendered and that a motion to reconsider must be filed

5    no later than 30 days thereafter).     Although Lin argues that

6    in its July 2007 decision, the BIA instructed the IJ to

7    accept a motion to reopen regardless of its timeliness, he

8    misconstrues the BIA’s decision.     In dismissing Lin’s merits

9    appeal as untimely, the BIA instructed Lin that if he sought

10   to challenge its finding that his appeal was untimely, he

11   should file a motion to reconsider with the BIA.     It further

12   stated that if he sought to challenge “any other” finding,

13   he should file a motion to reopen with the IJ.     These

14   instructions were not a “signal” for the IJ to consider any

15   motion, regardless of its timeliness.     Rather, they simply

16   informed Lin which tribunal had jurisdiction to consider the

17   various arguments he might assert.     Thus, the IJ did not err

18   in denying Lin’s motion to reopen and reconsider as

19   untimely.     8 C.F.R. § 1003.23(b); see Jin Ming Liu, 439 F.3d

20   at 111; Kaur, 413 F.3d at 233.

21   III.        Motion to Reissue

22          Finally, contrary to Lin’s argument that the IJ abused

23   her discretion in denying, as untimely, his motion to

24   reissue, that was not the basis for the IJ’s denial of his

                                     4
1    motion to reissue.     Rather, the IJ declined to reissue her

2    previous decision because Lin had advanced no reason for her

3    to do so.     In any event, we have found that as long as the

4    IJ’s decision is properly served, the time for appeal begins

5    to run and the agency does not abuse its discretion in

6    denying a motion to reissue the IJ’s prior decision.       See

7    Ping Chen v U.S. Att’y Gen., 502 F.3d 73, 76-77 (2d Cir.

8    2007).

9        For the foregoing reasons, the petition for review is

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

11   removal that the Court previously granted in this petition

12   is VACATED, and any pending motion for a stay of removal in

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

14   oral argument in this petition is DENIED in accordance with

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

16   Circuit Local Rule 34.1(b).

17

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