Ying Lin v. Loretta Lynch

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: A098-250-810 Copies to all parties and the district court/agency. [999927959].. [16-1157]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-1157

YING LIN,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Submitted:

September 8, 2016

Decided:

September 13, 2016

Before MOTZ, DUNCAN, and WYNN, Circuit Judges.

Petition dismissed in part and denied in part by unpublished per
curiam opinion.

Bruno J. Bembi, LAW OFFICE OF BRUNO J. BEMBI, Hempstead, New
York, for Petitioner.
Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, Kiley Kane, Senior Litigation
Counsel, Kathryn M. McKinney, OFFICE OF IMMIGRATION LITIGATION,
Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Ying Lin, a native and citizen of the People’s Republic of
China,

petitions

Immigration

for

Appeals

review
(Board)

of

an

order

dismissing

of

her

the

Board

appeal

from

of
the

immigration judge’s (IJ) decision denying her application for
cancellation of removal.

For the reasons set forth below, we

dismiss the petition for review.
Under 8 U.S.C. § 1252(a)(2)(B)(i) (2012), entitled “Denials
of discretionary relief,” “no court shall have jurisdiction to
review

any

judgment

regarding

the

granting

of

relief

under

section . . . 1229b,” which is the statutory section governing
cancellation of removal.
124-25

(4th

Cir.

discretionary

See Sorcia v. Holder, 643 F.3d 117,

2011)

denial

(finding

of

no

jurisdiction

cancellation

of

constitutional claim or question of law).

to

removal

review
absent

Here, the IJ found,

and the Board agreed, that Lin failed to meet her burden of
establishing that her two daughters would suffer exceptional and
extremely unusual hardship if Lin is removed to China.

Because

this determination is clearly discretionary in nature, we lack
jurisdiction to review challenges to this finding.
As
extremely

stated

by

unusual

the

Ninth

hardship’

Circuit,

“an

determination

‘exceptional
is

a

and

subjective,

discretionary judgment that has been carved out of our appellate
jurisdiction.”

Romero-Torres v. Ashcroft, 327 F.3d 887, 888
2

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(9th Cir. 2003).

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The agency’s finding concerning whether an

alien has proved an “exceptional and extremely unusual hardship”
is not a constitutional claim or question of law that is exempt
from the jurisdictional bar set forth in § 1252(a)(2)(B).

See,

e.g., Salas-Caballero v. Lynch, 786 F.3d 1077, 1078 (8th Cir.
2015); Sattani v. Holder, 749 F.3d 368, 372 (5th Cir. 2014);
Alhuay v. U.S. Att’y Gen., 661 F.3d 534, 549-550 (11th Cir.
2011); Solis v. Holder, 647 F.3d 831, 833 (8th Cir. 2011); see
also Obioha v. Gonzales, 431 F.3d 400, 405 (4th Cir. 2005) (“It
is

quite

clear

that

the

gatekeeper

provision

[of

§ 1252(a)(2)(B)(i)] bars our jurisdiction to review a decision
of the [Board] to actually deny a petition for cancellation of
removal.”).
hardship

is

Indeed,

we

have

committed

to

agency

subject to appellate review.
(4th Cir. 2001).

concluded

that

discretion

and

the

issue

thus

is

of
not

Okpa v. INS, 266 F.3d 313, 317

Lin’s challenge to the agency’s finding that

she did not show that her removal would be an exceptional and
extremely unusual hardship to her two daughters living in the
United

States

is

question of law.

not

a

reviewable

constitutional

claim

or

Accordingly, we lack jurisdiction to review

the denial of cancellation of removal and dismiss in part the
petition for review.
Lin’s contention that she was denied due process because
(1)

the

IJ

did

not

accept

her
3

evidence

submitted

past

the

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deadline; (2) her counsel appeared by telephone at the merits
hearing; and (3) the IJ denied her motion for a continuance must
fail.

Lin cannot state a colorable due process claim because

she has no liberty or property interest at stake.

See Aparicio

v. Lynch, __ F.3d __, __, 2016 WL 306809, at *5 (7th Cir. 2016)
(cancellation of removal is “a form of discretionary relief in
which there is no liberty interest at stake”); Nunez-Portillo v.
Holder,

763

F.3d

974,

977

(8th

Cir.

2014)

(alien

has

no

protected liberty interest in cancellation of removal); see also
Dekoladenu v. Gonzales, 459 F.3d 500, 508 (4th Cir. 2006) (“No
property or liberty interest can exist when the relief sought is
discretionary.”), abrogated on other grounds by Dada v. Mukasey,
554 U.S. 1 (2008); see also Smith v. Ashcroft, 295 F.3d 425,
429-30

(4th

“protected

Cir.

liberty

2002)
or

(holding

property

that

interest”

alien’s
in

the

lack

of

relief

a
he

sought—a discretionary waiver of deportation—was “a circumstance
fatal to his due process claim”).

Even if the Lin could assert

a due process claim, we concluded that she failed to show that
the proceeding was fundamentally unfair.

Anim v. Mukasey, 535

F.3d 243, 256 (4th Cir. 2008).
Finally, because Lin failed to show that she substantially
complied with the requirements under In re Lozada, 19 I. & N.
Dec. 637 (B.I.A. 1988), her ineffective assistance of counsel
claim fails.
4

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Accordingly,

Filed: 09/13/2016

we

petition for review.
facts

and

materials

legal
before

dismiss

in

part

and

deny

in

part

the

We dispense with oral argument because the

contentions
the

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court

are

adequately

and

argument

presented

would

not

in

the

aid

the

decisional process.
PETITION DISMISSED IN PART
AND DENIED IN PART

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