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Xinyou Lin v. Merrick Garland
USCA4 Appeal: 24-1091 Doc: 32 Filed: 10/15/2024 Pg: 1 of 3
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 24-1091
XINYOU LIN,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Submitted: October 10, 2024 Decided: October 15, 2024
Before WILKINSON and AGEE, Circuit Judges, and FLOYD, Senior Circuit Judge.
Petition denied in part and dismissed in part by unpublished per curiam opinion.
ON BRIEF: Jason Jia, JIA LAW GROUP, P.C., New York, New York, for Petitioner. Brian M. Boynton, Principal Deputy Assistant Attorney General, Edward E. Wiggers, Senior Litigation Counsel, Duncan T. Fulton, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit. *2 USCA4 Appeal: 24-1091 Doc: 32 Filed: 10/15/2024 Pg: 2 of 3
PER CURIAM:
Xinyou Lin (Lin), a native and citizen of the People’s Republic of China, petitions
for review of an order of the Board of Immigration Appeals denying Lin’s motion to reopen
his removal proceedings based on Niz-Chavez v. Garland, 593 U.S. 155 (2021), and further
declining to sua sponte reopen. Specifically, the Board ruled that (a) the underlying motion
to reopen was not timely, as it was filed more than nine years after Lin’s case was last
before the Board, and none of the exceptions to the one-year time limit for reopening
applied; (b) even if equitable tolling based on Niz-Chavez was viable, the Board would still
deny reopening because Lin did not demonstrate eligibility for cancellation of removal in
that, through counsel, Lin conceded that he did not have a qualifying U.S.-citizen relative,
see 8 U.S.C. § 1229b(b)(1)(D) (setting forth the statutory “exceptional and extremely
unusual hardship” requirement for cancellation of removal of nonpermanent resident); and
(c) sua sponte reopening was not warranted given that Lin did not demonstrate the requisite
exceptional circumstances, see In re G-D-, 22 I. & N. Dec. 1132, 1133-34 (B.I.A. 1999)
(explaining that the Board’s authority to sua sponte reopen removal proceedings is “an
extraordinary remedy reserved for truly exceptional situations”).
In this court, Lin mentions—but does not contest—the Board’s pivotal finding that
he did not identify a qualifying U.S.-citizen relative so as to support reopening to pursue
cancellation of removal. Accordingly, we hold that Lin has forfeited appellate review of
this aspect of the Board’s order, which is dispositive. See Fed. R. App. P. 28(a)(8)(A);
Ullah v. Garland, 72 F.4th 597, 602 (4th Cir. 2023) (explaining that a party forfeits
appellate review of those issues and claims not raised in the party’s briefs). Accordingly, *3 USCA4 Appeal: 24-1091 Doc: 32 Filed: 10/15/2024 Pg: 3 of 3
we deny the petition in part. As to Lin’s challenge to the Board’s denial of his request for
sua sponte reopening, we dismiss the petition in part because this court lacks jurisdiction
to review that aspect of the Board’s order. See Lawrence v. Lynch, 826 F.3d 198, 206-07
(4th Cir. 2016) (affirming that this court “lack[s] jurisdiction to review how the Board
exercises its sua sponte discretion”); Mosere v. Mukasey, 552 F.3d 397, 400-01 (4th Cir.
2009) (concluding that this court lacks jurisdiction to review the Board’s decision declining
to exercise its discretionary power to sua sponte reopen).
Accordingly, we deny the petition for review in part and dismiss in part. We deny
as moot the Attorney General’s motion for summary disposition. We dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional process.