Jin Hwa Lee v. Ashcroft

MEMORANDUM ***

Jin Hwa Lee, his wife, Myung Suk Lee, and their child, Hyun Min Lee, appeal from a decision of the Board of Immigration Appeals affirming the Immigration Judge’s denial of their motion to reopen their removal proceedings. Because the parties are familiar with the facts, we will not recite them in detail except as necessary. We have jurisdiction pursuant to 8 U.S.C. § 1252 , and we affirm.

The Lees argue that we review only the BIA’s decision, not that of the IJ. When, as here, the BIA clearly incorporates the IJ’s decision and fails to perform an independent review of the record, we review the IJ’s decision. Lopez-Reyes v. INS, 79 *505 F.3d 908, 911 (9th Cir.1996). Accordingly, we review the IJ’s denial of the motion to reopen for an abuse of discretion. Varela v. INS, 204 F.3d 1237, 1239 (9th Cir.2000). Issues of law are reviewed de novo. Id. Factual determinations are reviewed for substantial evidence. Lal v. INS, 255 F.3d 998, 1000 (9th Cir.2001).

The Lees contend that the government should be equitably estopped from asserting the 90-day time limit on filing a motion to reopen, 8 C.F.R. § 3.2 (c)(2), because the government committed misconduct by failing to…