Lin v. Garland
19-3666
| 2d Cir. | Mar 7, 2022Background
- Petitioner Xiu Feng Lin, a native and citizen of China, sought review of the BIA’s October 21, 2019 denial of her motion to reopen removal proceedings.
- Lin’s 2018 motion to reopen was untimely and number‑barred: it was filed more than 15 years after her 2003 removal order and was her fourth motion.
- Eligibility for cancellation of removal for non‑permanent residents requires 10 years of continuous physical presence; the stop‑time rule halts accrual when a proper NTA is served.
- The BIA denied relief relying on its view that Lin’s accrual stopped when she received a hearing notice (following Matter of Mendoza‑Hernandez), so she lacked the required continuous presence.
- The Second Circuit vacated the BIA’s reliance on Mendoza‑Hernandez in light of the Supreme Court’s Niz‑Chavez ruling (requiring a single NTA containing time/place), remanding for reconsideration; Lin’s jurisdictional challenge was rejected as foreclosed by Banegas Gomez.
- The court left open, for remand, whether accrual might have stopped upon entry of the final removal order (government did not brief that issue).
Issues
| Issue | Lin's Argument | Garland's Argument | Held |
|---|---|---|---|
| Whether the BIA should excuse time/number limits because Lin’s NTA omitted hearing time/place under Pereira | NTA omitted time/place, so stop‑time did not trigger and her continuous presence was not halted; motion should be considered timely | The subsequent hearing notice provided the missing time/place and thereby stopped accrual (consistent with BIA precedent) | Vacated BIA’s reliance on Mendoza‑Hernandez and remanded for reconsideration in light of Niz‑Chavez (which requires a single, complete NTA) |
| Whether the defective NTA deprived the immigration court of jurisdiction over Lin’s removal proceedings | Defective NTA voided IJ jurisdiction, so proceedings were invalid | Pereira does not strip IJ jurisdiction; jurisdiction is governed by separate regulation | Denied—Banegas Gomez forecloses this argument; Pereira/Niz‑Chavez address stop‑time, not IJ jurisdiction |
Key Cases Cited
- Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008) (abuse‑of‑discretion standard for reviewing denial of motion to reopen)
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (NTA must include hearing time/place to trigger stop‑time rule)
- Niz‑Chavez v. Garland, 141 S. Ct. 1474 (2021) (government must issue a single NTA containing all statutorily required information; subsequent hearing notice cannot cure omission)
- Banegas Gomez v. Barr, 922 F.3d 101 (2d Cir. 2019) (Pereira does not void IJ jurisdiction when NTA omits time/place)