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Lin v. U.S. Attorney General

United States Court of Appeals, Eleventh Circuit

January 31, 2018

BING QUAN LIN, Petitioner,

         Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A070-651-451

          Before MARCUS and NEWSOM, Circuit Judges, and MOORE, [*] District Judge.

          MARCUS, Circuit Judge.

         Petitioner Bing Quan Lin seeks review of a decision of the Board of Immigration Appeals ("BIA") denying his motion to reopen removal proceedings. On appeal, Lin raises a variety of claims -- some properly before this Court; some not. As for Lin's constitutional claims, those challenging the order of removal itself, and those addressing the sufficiency of the Immigration Judge's order denying the instant motion, the issues were not properly exhausted in immigration proceedings or are otherwise not properly before us, barring our review. As for Lin's remaining claims challenging the BIA's decision, we cannot say that the BIA abused its discretion or that its opinion lacked reasoned consideration when it denied Lin's motion to reopen. Therefore, the petition must be dismissed in part and denied in part.



         This case arises out of removal proceedings initiated by the Attorney General against Lin, a native and citizen of China. Lin entered the United States on December 16, 1991. He has presented materials suggesting that he entered at Honolulu, where he was issued an Alien Registration Number ("A-number") and a form I-122 instructing him to appear before an Immigration Judge ("IJ") at a time "to be determined later." The form gives the name of the applicant for admission as "Ping Chuan LIN." An "Order to Appear [for] Deferred Inspection, " scheduling a hearing on December 17, 1991, also appears in the Administrative Record. In addition, a fingerprint card taken in Honolulu on December 16, 1991, bears the A-number assigned on the I-122 form, the name "LIN Ping Chuan, " and a birthdate of April 1, 1955. Lin claims that he did not understand he was to appear before the Immigration Judge; instead he boarded a plane bound for New York City.

         In March 1993, Lin sought asylum. He says the application paperwork was prepared for him by an unlicensed practitioner of law. The asylum application gives Lin's name as "Lin, Bing Quan" and his date of birth as April 1, 1956. That form lists Lin's place and date of arrival in the United States as Hawaii, December 16, 1991. The application leaves blank spaces for the applicant's A-number, for "[o]ther names used, " and for the signature of any preparer. It also gives Lin's immigration status as "E.W.I., " meaning "entered without inspection." Lin was issued a new A-number in connection with his asylum application. The application was unsuccessful. In June 1997, a Notice to Appear in removal proceedings was issued to Lin for a hearing on December 23, 1997. The Notice to Appear charged Lin with being "an alien present in the United States who has not been admitted or paroled." Notice was mailed to an address in Charlotte, North Carolina, and was returned marked unclaimed. Lin did not appear at that hearing either and was ordered removed in absentia.

         Lin timely filed a motion to reopen the removal proceedings, his first motion to reopen. Lin claims this motion was also prepared by an unlicensed practitioner of law and that he did not understand its contents. The 1998 motion to reopen was denied by the Immigration Judge because Lin failed to appear at the hearing after being given proper notice, did not provide any reasons for his failure to appear, and demonstrated no exceptional circumstances otherwise warranting reopening. Lin did not appeal the decision denying his first motion to reopen.

         Lin continued to reside in the United States. In February 2014, the government approved an I-130 application, [1] filed by Lin's U.S.-citizen son, for adjustment of Lin's immigration status. That application was filed under the A-number issued in connection with Lin's asylum application. Notably, Lin would not be eligible to pursue an adjustment of his status if he had entered the United States without inspection. Rather, in order to be eligible, Lin must have been paroled into the United States. 8 U.S.C. § 1255 (making adjustment of status available to "an alien who was inspected and admitted or paroled into the United States, " 8 U.S.C. § 1255(a), or for those entering the United States without inspection who are the beneficiary of an application for adjustment of status filed "on or before April 30, 2001, " 8 U.S.C. § 1255(i)(1)(B), which Lin is not).

         Having received approval of the I-130, in 2014 Lin filed his second motion to reopen removal proceedings. This time, Lin argued, and attached an affidavit attesting, that he had been paroled into the United States and given an A-number under the erroneously spelled name "Ping Chuan" Lin. Because he had been issued an A-number in connection with that entry, Lin said, and had become an applicant for admission placed in exclusion proceedings, it was inappropriate to order him removed under the subsequently assigned A-number. An Immigration Judge denied Lin's second motion to reopen, finding that there was "[n]o evidence . . . submitted to establish" that Lin was indeed the "Ping Chuan" who had entered the country in 1991, that Lin's affidavit did "not track" the record in his case, and that Lin was a fugitive from justice because he had failed to inform the court of his whereabouts.

         Lin then filed his third motion to reopen in February 2016, offering similar arguments about why reopening was appropriate. He included an updated affidavit and a fingerprint analysis showing that fingerprints taken from the person who had entered at Honolulu as "Ping Chuan" Lin matched his own.


         In May 2016, an Immigration Judge denied Lin's third motion to reopen his removal proceedings. The handwritten notations on the IJ's denial of the motion are limited in scope but legible. These notations explain that "no appeal was taken" from the denial of Lin's two previous motions to reopen. The additional notations appear to read as follows: "On 2/8/16 a third motion to reopen was filed -- renewing argument denied in 2nd [motion to reopen] (no appeal)[.] This will be denied as untimely [and] because of previously filed motions[.] 8 CFR § 1003.23(b)[illegible][.][2] No showing evidence [and] argument was not previously available[.]"[3] Although a box is checked that explains the motion is denied "for the reasons indicated in the attached decision, " no additional decision, separate from the grounds handwritten on the form itself, appears in the certified Administrative Record.

         Lin lodged an appeal with the Board of Immigration Appeals. The BIA denied his application in February of this year, explaining the history of Lin's entry, asylum application, and previously denied motions. The BIA agreed with the Immigration Judge's judgment and reasoning. It too specifically concluded that "[Lin]'s additional arguments in his third motion to reopen were not new or previously unavailable." The BIA also determined that there was no basis for it to have reopened sua sponte its removal proceedings.

         This appeal ensued.


         First, we must determine whether the Court has the power to entertain each of petitioner's claims. See, e.g., Cadet v. Bulger, 377 F.3d 1173, 1179 (11th Cir. 2004) ("Federal courts 'are obligated to inquire into subject-matter jurisdiction sua sponte whenever it may be lacking.'" (quoting Galindo-Del Valle v. Att'y Gen., 213 F.3d 594, 599 (11th Cir. 2000))). "We review our subject matter jurisdiction de novo." Amaya-Artunduaga v. U.S. Att'y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006).

         A petitioner contesting a final order of removal must exhaust the administrative immigration process before he may be heard in federal court. 8 U.S.C. § 1252(d)(1) ("A court may review a final order of removal only if . . . the alien has exhausted all administrative remedies available to the alien as of right." (emphasis added)). We have held that failure to raise an issue to the BIA constitutes a failure to exhaust. See Jeune v. U.S. Att'y Gen., 810 F.3d 792, 800 (11th Cir. 2016) ("[W]hen a petitioner has neglected to assert an error before the BIA that he later attempts to raise before us, the petitioner has failed to exhaust his administrative remedies." (citing Amaya-Artunduaga, 463 F.3d at 1250-51)). This Court has also determined that the failure to exhaust is jurisdictional, "so we lack jurisdiction to consider claims that have not been raised before the BIA." Sundar v. I.N.S., 328 F.3d 1320, 1323 (11th Cir. 2003); see also Amaya-Artunduaga, 463 F.3d at 1250 (citing Sundar, 328 F.3d at 1323); Indrawati v. U.S. Att'y Gen., 779 F.3d 1284, 1297 (11th Cir. 2015) (citing Amaya-Artunduaga, 463 F.3d at 1250). Thus, while we are obliged to consider those issues that have been properly presented in immigration proceedings and, where necessary, appealed to the Board of Immigration Appeals, we cannot consider issues that could have been, but were not properly raised in immigration proceedings and appealed to the BIA.

         Here, Lin asserts a number of errors in the disposition of his third motion to reopen his removal proceedings as well as in his other motions and in the order of removal itself. However, we lack jurisdiction over Lin's constitutional claims as well as any of the claims unrelated to the third motion to reopen. Plainly, Lin's constitutional claims were of the kind that could have been raised in his immigration proceedings, but he failed to exhaust them. Likewise, we are barred from reviewing petitioner's claims that the Immigration Judge's decision was deficient because it was handwritten and briefly stated, since those claims were never presented to the BIA. Moreover, we cannot consider petitioner's challenges to the order of removal or to the denial of his motions to reopen in 1998 and again in 2014 because he never appealed from any of them.


         Lin claims that his removal has been ordered in violation of the Fifth Amendment Due Process Clause. First, he says that he never received notice of the 1997 removal hearing. Second, he says the Immigration and Naturalization Service ("INS") failed to follow its own policy to search its records thoroughly for a previous A-number. Lin also asserts that this failure to follow agency policy makes the BIA's refusal to reopen sua sponte legally incorrect, reasoning that "due process requires that proceedings improvidently commenced may be terminated at any time." Finally, he contends that "[a]n Order of Removal which is premised on a false allegation and which produces an unjust result violates due process."

         Although constitutional claims sometimes may avoid the requirement of administrative exhaustion, Lin's constitutional arguments were subject to an exhaustion requirement and undeniably were not exhausted. Accordingly, we lack the power to consider them.

         The administrative exhaustion requirement may not always prevent consideration of certain constitutional claims that a petitioner has not asserted in immigration proceedings. Thus, we have suggested that "some classes of claims" arising under the immigration laws and alleging constitutional error are not subject to a requirement ...

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