LIN v. GARLAND (2021)

SUMMARY ORDER

Petitioner Lung Lin, a native and citizen of China, seeks review of a September 16, 2019, decision of the BIA affirming a September 28, 2018, decision of an Immigration Judge (“IJ”) denying his motion to reopen. In re Lung Lin a.k.a. Rong Lin, No. A076 683 998 (B.I.A. Sept. 16, 2019), aff'g No. A076 683 998 (Immig. Ct. NY City Sept. 28, 2018). We assume the parties’ familiarity with the underlying facts and procedural history.

We review the denial of a motion to reopen for abuse of discretion. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008). Contrary to Lin's assertion, the agency did not ignore his argument for equitable tolling and sua sponte reopening; it assumed arguendo that Lin's motion was timely and not number-barred and considered the merits. The agency may deny a motion to reopen if the movant fails to establish his prima facie eligibility for the underlying relief sought. See INS v. Abudu, 485 U.S. 94, 104, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).

Lin argued that he established his prima facie eligibility for cancellation of removal given the decision in Pereira v. Sessions, ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018). Under Pereira, Lin's notice to appear (“NTA”), which did not contain a hearing date or time, was deficient and did not stop time for calculating the physical presence required for cancellation of removal. The agency concluded that his defective NTA was perfected when he received a hearing notice providing the date and time of his hearing. The Supreme Court has since rejected the agency's position, holding that an NTA that does not contain a hearing date and time as required by Pereira is not cured for purposes of the stop-time rule by a subsequent hearing notice that provides the missing information. See Niz-Chavez v. Garland, ––– U.S. ––––, 141 S. Ct. 1474, 209 L.Ed.2d 433 (2021). Accordingly, the agency erred in its conclusion that Lin failed to establish his prima facie eligibility for cancellation of removal.

For the foregoing reasons, the petition for review is GRANTED, the BIA's decision is VACATED, and the case is REMANDED for further proceedings. All pending motions and applications are DENIED and stays VACATED.