Zi-Xing Lin v. Alberto R. Gonzales, Attorney General

Petitioner is a Chinese national who was lawfully removed from the United States, re-entered illegally, and then filed an untimely motion to reopen his original deportation proceedings. The immigration judge (“IJ”) denied petitioner’s motion, the Board of Immigration Appeals (“BIA”) affirmed that denial, and petitioner appealed to this court. We reverse and remand because (a) 8 C.F.R. § 1003.23 (b)(1) cannot be applied to the facts of this case, (b) no steps were taken by the Department of Homeland Security (“DHS”) to reinstate petitioner’s prior removal order under 8 C.F.R. § 241.8 , and (c) neither the IJ nor the BIA made any finding concerning whether petitioner’s motion was eligible for any exception to late filing under 8 C.F.R. § 1003.23 (b)(4).

FACTS AND PRIOR PROCEEDINGS

Petitioner first entered the United States on July 14, 1997, on a flight from Russia to Anchorage, Alaska. Petitioner and his two traveling companions (also Chinese) claimed to be Japanese nationals and carried Japanese passports that had been stolen in Thailand and fraudulently altered. Petitioner was placed in removal proceedings before an IJ. After hearing his testimony, the IJ found petitioner not…