Lin vs Ashcroft [Summ. Ord.], (2nd Cir. 2006)

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UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER

AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY

OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY

OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR

IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the

Thurgood Marshall United States Courthouse, Foley Square, in the City of New York, on the 31st

day of January, two thousand and six.

PRESENT:

HON. JOHN M. WALKER, JR.,

Chief Judge,

HON. CHESTER J. STRAUB,

HON. ROBERT D. SACK,

Circuit Judges.

Shu Bing Lin,

Petitioner,

v. No. 03-41081-ag

NAC

Alberto R. Gonzales,1

Respondent.

FOR PETITIONER: Thomas V. Massucci, New York, New York

FOR RESPONDENT: Eric F. Melgren, United States Attorney for the District of Kansas,

Leo n Patton, Assistant United States Attorney, Kansas City,

Kansas. UPON DUE CONSIDERATION of this petition for review from the Board of Immigration Appeals ("BIA"), it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED in part and GRANTED in part, the BIA's November 2003 order is VACATED in part, and the case is REMANDED to the BIA for further proceedings consistent with this decision.

Shu Bing Lin, a national and citizen of the People's Republic of China ("China"), petitions for review of the BIA's November 2003 order denying his motion to reopen and reconsider his final order of removal. We assume the parties' familiarity with the facts and procedural history of this case.

This Court reviews the BIA's denial of a motion to reopen or reconsider for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2004) (per curiam); Khouzam v. Ashcroft, 361 F.3d 161, 165 (2d. Cir. 2004) (citing Brice v. U.S. Dep't of Justice, 806 F.2d 415, 419 (2d Cir. 1986)). An abuse of discretion may be found where the BIA's decision "provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner." Kaur, 413 F.3d at 233-34 (quoting Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (internal citations omitted)).

The BIA denied Lin's motion to reopen or reconsider, because it concluded that Lin "failed to address in any manner the adverse findings by the Immigration Judge or in any way contend that they were erroneous" but, rather, sought only "to relitigate the arguments made in his appeal but not mentioned by the Board in its summary affirmance." This was a proper basis for denying the motion to reconsider, since Lin's motion merely restated the factual elements of his claim without specifying errors of fact or law in the BIA's decision, and he did not provide any authority, pertinent or otherwise. See 8 C.F.R. § 1003.2(b)(1); Ke Zhen Zhao, 265 F.3d at 90; see also Yu Zhao v. Gonzales, 404 F.3d 295, 301 (5th Cir. 2005) (denying petition because it failed to present "a change in the law, a misapplication of the law or an aspect of the case that the BIA overlooked").

However, the BIA did not address the evidence that Lin submitted with his motion to reopen--i.e., the March 5, 2003 letter from Lin's father. In this letter, Lin's father claimed that "some time ago," a local resident who had been returned to China by the U.S. government was forced by the authorities to give the names of "those persons who were from our village and now in the United States applying for political asylum. [He] gave your name out. The policemen came to our home asking if you were in the United States applying for political asylum." Since this letter was ostensibly written some two weeks after the BIA issued its February 20, 2003 decision denying Lin's motion to reopen or reconsider, the Board's failure to address the letter constitutes an abuse of discretion. See Kaur, 413 F.3d at 233-34; Ke Zhen Zhao, 265 F.3d at 93.

For the foregoing reasons, we deny the petition for review in part and grant it in part, vacate the BIA's decision in part, and remand to the BIA for further proceedings consistent with this decision. Having completed our review, the stay of removal that the Court previously granted in this petition is VACATED.

FOR THE COURT: Roseann B. MacKechnie, Clerk By:

1 Pursuant to F e d e r a l Rul of App e l l a t e Proce d u r e 43 ( c autom a t i c a l l y sub s t i t u t e d for former Atto r n e y G e n e r a l John Ashcroft as a respo n d e n t in this case .

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