Dian Wei Lin v. Holder

SUMMARY ORDER Dian Wei Lin, a native and citizen of China, seeks review of a November 7, 2007, BIA order affirming the February 28, 2007, decision of Immigration Judge Sandy K. Horn, which denied his motion to reopen. In re Dian Wei Lin, No. A073 134 465 (B.I.A. Nov. 7, 2007), aff'g No. A073 134 465 (Immig. Ct. N.Y. City Feb. 28, 2007). Lin’s motion to reopen was based on his claim that he fears persecution on account of the birth of his U.S. citizen children in violation of China’s family planning policy. For largely the same reasons as this Court set forth in Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir.2008), we find no error in the agency’s denial of Lin’s motion to reopen. See id. at 168-72. As the government contends, Lin’s arguments concerning the IJ’s underlying in absentia exclusion order are unavailing. To the extent Lin argues that he was not required to seek rescission in order to pursue reopening, the BIA’s decision is not to the contrary; indeed, it explicitly held that rescission was not required. See Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir.2006) (finding that a motion that seeks rescission of an in absentia order is treated as distinct from a motion to reopen proceedings based on new evidence); see also Matter of A-N & R-M-N- 22 I & N Dec. 953, 956 (B.I.A.1999) (holding that a movant need not show reasonable cause for his failure to appear at a hearing in order to reopen his immigration proceedings if the basis of the movant’s motion is not that the IJ erred in ordering him excluded in absentia). To the extent Lin argues that the BIA failed to consider whether he received proper notice of the consequences of failing to appear, it was under no obligation to do so because Lin never suggested before the IJ that he did not receive proper notice. For the foregoing reasons, this petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).