Jin-Hao Lin v. Mukasey

dissenting:

I dissent. This is but one of a multitude of similar sad cases by which our government’s deportation of undocumented parents results in the deportation of their American-born citizen children, and effectively denies those children their birthrights. See Cerrillo-Perez v. INS, 809 F.2d 1419, 1426-27 (9th Cir.1987) (Requiring the government to conduct individualized analyses of hardships to U.S. citizen children). Our government’s conduct forces U.S. citizen children to accept de facto expulsion from their native land or give up their constitutionally protected right to remain with their parents. See, e.g., Moore v. City of E. Cleveland, 431 U.S. 494, 503-05 , 97 S.Ct. 1932 , 52 L.Ed.2d 531 (1977) (plurality opinion) (“Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.”); Stanley v. Illinois, 405 U.S. 645, 651 , 92 S.Ct. 1208 , 31 L.Ed.2d 551 (1972) (recognizing that “[t]he integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment”).

I hope and pray that soon the good men and women in our…

MEMORANDUM **

Jin-Hao Lin, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen. Lin argues, inter alia, that 8 U.S.C. § 1158 (a)(2)(D), permitting successive asylum applications in the face of changed personal circumstances, serves as an independent exception to the time limitations on motions to reopen. Petitioner’s argument is foreclosed by this court’s recent decision in Chen v. Mukasey, 524 F.3d 1028 (9th Cir.2008), and his petition is denied.

Lin’s exclusion proceedings were held in absentia in 1992. Thirteen years later, after Lin moved to New York, lost contact with his attorney, and fathered two children, he sought to file a successive asylum application, citing his fear of persecution for violating China’s family planning laws.

Lin failed to meet the procedural requirements for filing a proper motion to reopen. In general, a motion to reopen must be filed “within 90 days of the date of entry of a final administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2 (c)(2). The motion to reopen at issue here was filed around thirteen years after entry of Lin’s deportation…