YONG XIANG LIN v. BIA, 219 Fed.Appx. 41 (2nd Cir. 2007)

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 0.23 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: “(SUMMARY ORDER).” UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV), THE PARTY CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED. YONG XIANG LIN, Petitioner v. BOARD OF IMMIGRATION APPEALS, Respondent.

No. 05-6264-ag.United States Court of Appeals, Second Circuit.
February 26, 2007.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

UPON DUE CONSIDERATION, of this petition for review of the Board of Immigration Appeals (“BIA”) decision it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.

Gary J. Yerman, New York, New York, for Petitioner.

John C. Richter, United States Attorney for the Western District of Oklahoma, Eleanor Darden Thompson, Assistant United States Attorney, Oklahoma City, Oklahoma, for Respondent.

PRESENT: Hon. ROSEMARY S. POOLER, Hon. BARRINGTON D. PARKER, Hon. PETER W. HALL, Circuit Judges.

SUMMARY ORDER
Petitioner Yong Xiang Lin, a native and citizen of China, seeks review of an October 28, 2005 order of the BIA denying his first motion to reopen his proceedings. In re Yong Xiang Lin, No. A 73 627 897 (B.I.A. Oct. 28, 2006). The BIA denied a second motion to reopen on May 12, 2006. In re Yong Xiang Lin, No. A 73 627 897 (B.I.A. May 12, 2006). On July 1, 1997, the BIA affirmed the October 24, 1996 decision of Immigration Judge (“IJ”) Gabriel Videla denying Lin’s application for asylum and withholding of deportation. In re Yong Xiang Lin, No. A 73 627 897 (B.I.A. July 1, 1997), affg In re Yong Xiang Lin, No. A 73 627 897 (Immig. Ct. N.Y. City Oct. 24, 1996). We assume the parties’ familiarity with the underlying facts and procedural history.

This Court reviews the BIA’s denial of a motion for abuse of discretion. See, e.g., Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005). An abuse of discretion will be found “in those circumstances where the [BIA’s] decision provides no rational explanation, inexplicably departs from established

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policies, is devoid of any reasoning, or contains only summary conclusions or statements; that is to say, where the [BIA] has acted in an arbitrary or capricious manner.” Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (internal citations omitted).

Because Lin’s petition for review was filed on November 23, 2005, it is timely only with respect to the BIA’s October 2005 denial of his motion to reopen. Lin did not file a subsequent petition for review of the BIA’s May 2006 denial of his second motion to reopen, and thus this Court does not have jurisdiction to review that decision. Id. at 89-90. Because Lin has failed to sufficiently argue the merits of the BIA’s October 2005 denial of his motion to reopen before this Court, we deem any such arguments waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir. 2005).

For the foregoing reasons, the petition for review is DENIED. Having completed our review, the pending motion for a stay of removal in this petition is DENIED as moot.