Appearing for Petitioner: Theodore N. Cox, New York, New York.
Appearing for Respondent: Michael M. Krauss, Assistant U.S. Attorney (James B. Comey, U.S. Attorney, on the brief; Kathy S. Marks and Gideon A. Schor, Assistant U.S. Attorneys, of counsel), Southern District of New York, New York, New York.
On petitions for review of orders of the Board
of Immigration Appeals.
AFTER ARGUMENT AND UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the petitions for review of the orders of the Board of Immigration Appeals be and they hereby are DENIED.
Petitioner Guang Lin petitions for review
of two decisions of the Board of Immigration Appeals ("BIA"):
(1) the BIA's dismissal of Lin's appeal from a decision of an
Immigration Judge ("IJ") denying Lin's motion to reconsider
the IJ's earlier denial of Lin's application for asylum, withholding
of removal, and relief under the Convention Against Torture ("CAT");
and (2) the BIA's denial of Lin's motion to reopen the removal
proceedings. We deny both petitions. 1
Lin, a citizen of the People's Republic of China, attempted to enter the United States at John F. Kennedy International Airport on July 19, 1999 using a fraudulent passport. In February 2000, after passing a credible fear interview, Lin applied for asylum and withholding of removal under the Immigration and Nationality Act ("INA"), and for relief under the CAT (collectively "asylum application" or "application"). He claimed to fear persecution at the hands of the Chinese government because he had violated China's "one-family-one-child" policy by fathering two children with his wife. Deeming Lin's testimony inconsistent and non-credible, the IJ denied Lin's application on April 20, 2000, and ordered Lin removed to China.
Rather than appeal the denial of his asylum application, Lin submitted to the IJ a motion for reconsideration. The IJ denied the reconsideration motion on May 26, 2000 on the grounds that Lin-contrary to the requirements of INA § 240(c)(5)(C) and 8 C.F.R. § 3.23(b)(2)-neither specified any error of fact or law extant in the prior decision, nor supported his motion with pertinent authority. 2
Lin appealed the denial of his
motion to reconsider to the BIA, arguing that the IJ erred in
finding him not credible and in failing to grant his asylum application.
On October 20, 2000 the BIA dismissed Lin's appeal, agreeing with
the IJ that Lin's failure to specify any errors of fact or law,
or to provide legal authority to support the contentions in his
reconsideration motion, were proper grounds for denying the reconsideration
motion. In its opinion, the BIA noted that because Lin was appealing
the IJ's May 26 denial of his motion to reconsider and not the
IJ's April 20 denial of his asylum application, it was inappropriate
for him to call into question the merits of the IJ's findings
regarding his credibility. The BIA went on to explain, however,
that the April 20 denial would withstand a challenge on the merits
even if it were appropriate for Lin to make one, because Lin's
testimony was vague, confusing and inconsistent. On December 29,
2000 Lin moved for his case to be reopened based on new evidence.
The BIA denied this motion on February 9, 2001 on the ground that
Lin failed to follow 8 C.F.R. § 3.2(c)(1), which requires
movants for reopening to explain how the additional evidence was
material to his claim and why it was unavailable for presentation
during prior proceedings.
INA § 240(c)(5)(C) mandates that a motion to reconsider "shall specify the errors of law or fact in the previous order." Similarly, 8 C.F.R. § 3.23(b)(2) requires that a "motion to reconsider shall state the reasons for the motion by specifying the errors of fact or law in the Immigration Judge's prior decision." This court reviews for abuse of discretion a decision by the BIA dismissing an appeal from an IJ's denial of a motion to reconsider. Brice v. U.S. Dep't of Justice, 806 F.2d 415, 419 (2d Cir. 1986).
In his motion to reconsider,
Lin did not allege errors in the IJ's decision with any specificity,
but instead stated only that the "court denied [his] applications
for relief on legally insufficient grounds." This wholly
conclusory assertion falls far short of a statutory requirement
that errors be specified. See Zhao v. U.S. Dep't of
Justice, 265 F.3d 83, 90-91 (2d Cir. 2001) (agreeing with
BIA that failure to identify legal or factual error in the previous
decision did not meet specification requirement of 8 C.F.R. §
3.2(b)(2), the provision governing motions for reconsideration
directed to the BIA and containing specification requirement identical
to that contained in 8 C.F.R. § 3.23(b)(2)); Nascimento
v. INS, 274 F.3d 26, 28 (1st Cir. 2001) (same). We thus find
that the BIA did not abuse its discretion in dismissing Lin's
Despite having appealed to the
BIA the IJ's denial of his motion to reconsider, Lin's brief to
this court addresses the merits of the IJ's April 20 decision
to deny Lin's asylum application. The date by which Lin was required
to appeal that decision-May 20, 2000, see 8 C.F.R. §
3.38 ("The Notice of Appeal to the Board of Immigration Appeals
. . . shall be filed . . . within 30 calendar days after the stating
of an Immigration Judge's oral decision."); id. §
3.39 ("[T]he decision of the Immigration Judge becomes final
upon waiver of appeal or upon expiration of the time to appeal
if no appeal is taken whichever occurs first.")-has expired,
and this court thus lacks the authority to review the underlying
merits of Lin's asylum application. See Zhao, 265 F.3d
8 C.F.R. § 3.2(c)(1) provides
that "[a] motion to reopen proceedings shall not be granted
unless it appears to the Board that evidence sought to be offered
is material and was not available and could not have been discovered
or presented at the former hearing." We review denials of
motions to reopen for abuse of discretion. See INS v. Doherty,
502 U.S. 314, 323-24 (1992).
Here, the BIA properly
concluded that the evidence Lin submitted with his motion to reopen
could have been presented at the time Lin first applied for asylum.
The majority of the documents and articles discussing China's
"one-family-one-child" policy are without exception
dated before the date of Lin's original asylum application. Furthermore,
while it may be true that the need for a supplemental affidavit
from former U.S. Census Bureau demographer John Aird could not
have been fully known until after Lin testified at the IJ hearing
regarding the family planning officials' alleged threat to sterilize
Lin, this merely begs the question of why Lin did not mention
the sterilization threat in his original asylum application.
For all of the foregoing reasons,
the petitions for review of the orders of the Board of Immigration
Appeals are hereby DENIED.
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1 On August 1, 2002, Lin filed a third petition for review of a BIA decision. Lin v. Immigration and Naturalization Service, Docket No. 02-4355. In that petition, Lin seeks review of the BIA's denial of an additional motion to reopen, this time alleging ineffective assistance by Attorney Cox-the counsel that represented Lin in all of his immigration proceedings before the IJ and BIA, and that is currently representing Lin with respect to the two petitions for review we consider in this summary order.
We ordered Lin's third petition consolidated with his prior two petitions on November 21, 2002, and argument in the consolidated appeal was scheduled for February 24, 2003. However, because the parties were unable to file their briefs with respect to the third petition before the date of argument, we sever the third petition from the instant appeal. We grant the severance after being advised by counsel for Lin on the third petition that Lin consented both to severance and to having Attorney Cox continue to represent him as to the two petitions that are the subject of this summary order. Feb. 12, 2003 Ltr. from Jeffrey E. Baron, Esq. to Roseann B. MacKechnie, Clerk of Court. The government also informed this court that it did not object to the severance.
2 In his
denial of Lin's reconsideration motion, the IJ mistakenly noted
that it is 8 C.F.R. § 3.23(b)(3) that requires a movant for
reconsideration to specify the errors of fact and law in the prior
decision and to support his motion with pertinent authority. It
is actually 8 C.F.R. § 3.23(b)(2) that contains these requirements.