Bing Quan Lin v. U.S. Attorney General

881 F.3d 860
CourtCourt of Appeals for the Eleventh Circuit
DecidedJanuary 31, 2018
Docket17-10834
StatusPublished
Cited by144 cases

This text of 881 F.3d 860 (Bing Quan Lin v. U.S. Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bing Quan Lin v. U.S. Attorney General, 881 F.3d 860 (11th Cir. 2018).

Opinion

MARCUS, Circuit Judge:

Petitioner Bing Quan Lin seeks review of a decision of the Board of Immigration Appeals (“BIA”) denying his motion to reopen removal proceedings. On appeal, Lin raises a variety of claims—some properly before this Court; some not. As for Lin’s constitutional claims, those challenging the order of removal itself, and those addressing the sufficiency of the Immigration Judge’s order denying the instant motion, the issues were not properly exhausted in immigration proceedings or are otherwise not properly before us, barring our review. As for Lin’s remaining claims challenging the BIA’s decision, we cannot say that the BIA abused its discretion or that its opinion lacked reasoned consideration when it denied Lin’s motion to reopen. Therefore, the petition must be dismissed in part and denied in part.

I.

A.

This case arises out of removal proceedings initiated by the Attorney General against Lin, a native and citizen of China. Lin entered the United States on December 16, 1991. He has presented materials suggesting that he entered at Honolulu, where he was issued an Alien Registration Number (“A-number”) and a form 1-122 instructing him to appear before an Immigration Judge (“IJ”) at a time “to be determined later.” The form gives the name of the applicant for admission as “Ping Chuan LIN.” An “Order to Appear [for] Deferred Inspection,” scheduling a hearing on December 17, 1991, also appears in the Administrative Record. In addition, a fingerprint card taken in Honolulu on December 16, 1991, bears the A-number assigned on the 1-122 form, the name “LIN Ping Chuan,” and a birthdate of April 1, 1955. Lin claims that he did not understand he was to appear before the Immigration Judge; instead he boarded a plane bound for New York City.

In March 1993, Lin sought asylum. He says the application paperwork was prepared for him by an unlicensed practitioner of law. The asylum application gives Lin’s name as “Lin, Bing Quan” and his date of birth as April 1, 1956. That form lists Lin’s place and date of arrival in the United States as Hawaii, December 16, 1991. The application leaves blank spaces for the applicant’s A-number, for “[o]ther names used,” and for the signature of any preparer. It also gives Lin’s immigration status as “E.W.I.,” meaning “entered without inspection.” Lin was issued a new A-number in connection with his asylum application. The application was unsuccessful. In June 1997, a Notice to Appear in removal proceedings was issued to Lin for a hearing on December 23,1997. The Notice to Appear charged Lin with being “an alien present in the United States who has not been admitted or paroled.” Notice was mailed to an address in Charlotte, North Carolina, and was returned marked unclaimed. Lin did not appear at that hearing either and was ordered removed in absen-tia.

Lin timely filed a motion to reopen the removal proceedings, his first motion to reopen. Lin claims this motion was also prepared by an unlicensed practitioner of law and that he did not understand its contents. The 1998 motion to reopen was denied by the Immigration Judge because Lin failed to appear at the hearing after being given proper notice, did not provide any reasons for his failure to appear, and demonstrated no exceptional circumstances otherwise warranting reopening. Lin did not appeal the decision denying his first motion to reopen.

Lin continued to reside in the United States. In February 2014, the government approved an 1-130 application, 1 filed by Lin’s U.S.-citizen son, for adjustment of Lin’s immigration status. That application was filed under the A-number issued in connection with Lin’s asylum application. Notably, Lin would not be eligible to pursue an adjustment of his status if he had entered the United States without inspection. Rather, in order to be eligible, Lin must have been paroled into the United States. 8 U.S.C. § 1255 (making adjustment of status available to “an alien who was inspected and admitted or paroled into the United States,” 8 U.S.C. § 1255(a), or for those entering the United States without inspection who are the beneficiary of an application for adjustment of status filed “on or before April 30, 2001,” 8 U.S.C. § 1255(i)(l)(B), which Lin is not).

Having received approval of the 1-130, in 2014 Lin filed his second motion to reopen removal proceedings. This time, Lin argued, and attached an affidavit attesting, that he had been paroled into the United States and given an A-number under the erroneously spelled name “Ping Chuan” Lin. Because he had been issued an A-number in connection with that entry, Lin said, and had become an applicant for admission placed in exclusion proceedings, it was inappropriate to order him removed under the subsequently assigned A-number. An Immigration Judge denied Lin’s second motion to reopen, finding that there was “[n]o evidence ... submitted to establish”- that Lin was indeed the “Ping Chuan” who had entered the country .in 1991, that- Lin’s affidavit did “not track” the record in his case, and that Lin was a fugitive from justice because he had failed to inform the court of his whereabouts.

Lin then filed his third motion to reopen in February 2016, offering similar arguments about why reopening was appropriate. He included an updated affidavit and a fingerprint analysis showing that fingerprints taken from the person who had entered at Honolulu as “Ping Chuan” Lin matched his own.

B.

In May 2016, an Immigration Judge denied Lin’s third motion to reopen his removal proceedings. The handwritten notations on the IJ’s denial of the motion are limited in scope but legible. These notations explain that “no appeal was taken’’ from the denial of Lin’s two previous motions to reopen. The additional notations appear to read as follows: “On 2/8/16 a third motion to reopen was filed—renewing argument denied in 2‘ul [motion to reopen] (no'appeal)[,] This will be denied as untimely [and] because of previously filed motions[.] 8 CFR § 1008.23(b)[illegible][.] 2 No showing evidence [and] argument was not previously available[.]” 3 Although a box is checked that explains the motion is ’ denied “for the reasons indicated in the attached decision,” no additional decision; separate from the grounds handwritten on the form itself, appears in the certified Administrative Record.

Lin lodged an appeal with the Board of Immigration Appeals. The BIA denied his application in February of this year, explaining the history of Lin’s entry, asylum; application, and previously denied motions. The BIA agreed with the Immigration Judge’s judgment and reasoning. It too specifically concluded that “[Lin]’s additional arguments in his third motion to reopen were not new or previously unavailable.” The' BIA also' determined that there was no basis for it to have reopened sua sponte its removal proceedings.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
881 F.3d 860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bing-quan-lin-v-us-attorney-general-ca11-2018.