Wan Ping Lin v. Mukasey

MEMORANDUM **

Wan Ping Lin, a native and citizen of China, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) denying his motion to reopen. We deny the petition.

Lin was initially ordered deported on August 9, 1993, after failing to appear at his exclusion hearing. A petitioner may succeed in a motion to reopen requesting rescission of an in absentia exclusion order if he demonstrates reasonable cause for failing to appear. 8 U.S.C. § 1229a(b)(5)(C)(ii); Matter of Nafi, 19 I. & N. Dec. 430, 432 (BIA 1987). Here, the BIA did not err in finding that Lin had proper notice of his August 9, 1993 hearing date and time. The Immigration Judge gave Petitioner both oral and written notice of his hearing date, and specifically warned him of the consequences of failing to appear. Furthermore, it is undisputed that Lin’s attorney had notice of the August 9, 1993 hearing date. See Garcia v. INS, 222 F.3d 1208, 1209 (9th Cir.2000) (holding that notice to the attorney of record constitutes notice to the petitioner). Accordingly, the BIA did not abuse its discretion in determining that Lin failed to show reasonable cause justifying a rescission of his in absentia…

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 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 *469 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…