Lin v. Garland, 19-1856

Petitioner Bai Xiang Lin, a Chinese national, had a final removal order entered in 2009.
In 2018 Lin filed a motion to reopen—his fourth motion and filed well after the 90‑day limit—so it was untimely and number‑barred under the immigration rules.
Lin argued his initial notice to appear (NTA) was defective for failing to state the hearing date/time, so under Pereira the stop‑time rule did not trigger and he could accrue time toward cancellation of removal.
The BIA denied reopening, reasoning the defective NTA was cured by a subsequent hearing notice that supplied the missing date/time, so the stop‑time rule applied and cancellation was unavailable.
The Supreme Court later rejected the BIA’s curing theory in Niz‑Chavez, holding a defective NTA is not cured for stop‑time purposes by a later hearing notice.
The Second Circuit concluded the BIA had misperceived the governing law and remanded the case for reconsideration; petition for review granted.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether BIA should reopen despite motion being untimely and number‑barred	Lin: Pereira means the NTA didn’t trigger stop‑time, so he may be eligible for cancellation and reopening could succeed	Government: Subsequent hearing notice cured the NTA; stop‑time applied, so reopening is untimely/number‑barred	Court: Remanded — BIA misperceived the law after Supreme Court developments; reopening may be viable
Whether a later hearing notice cures a defective NTA for the stop‑time rule	Lin: A defective NTA is not cured by a later notice (Pereira/Niz‑Chavez view)	Government: Later notice supplies missing info and thus cures the defective NTA	Court: Supreme Court (Niz‑Chavez) rejects cure theory; BIA’s contrary view was legally mistaken
Jurisdiction to review BIA’s refusal to reopen sua sponte	Lin: Court review is appropriate where BIA incorrectly believed reopening would necessarily fail	Government: Courts generally lack jurisdiction to review BIA’s sua sponte decisions	Court: Although generally unreviewable, remand is appropriate when BIA misperceived controlling law (Mahmood)

Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008) (abuse‑of‑discretion standard for reviewing motions to reopen)
Pereira v. Sessions, 138 S. Ct. 2105 (2018) (defective NTA lacking date/time does not trigger stop‑time rule)
Niz‑Chavez v. Garland, 141 S. Ct. 1474 (2021) (rejected BIA’s cure‑by‑later‑notice theory for NTAs)
Ali v. Gonzales, 448 F.3d 515 (2d Cir. 2006) (generally no judicial review of BIA’s refusal to reopen sua sponte)
Mahmood v. Holder, 570 F.3d 466 (2d Cir. 2009) (courts may remand where BIA misperceived legal background)