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LIN v. ATTORNEY GENERAL UNITED STATES (2021)

United States Court of Appeals, Third Circuit.2021-05-13No. No. 19-2483

Summary

Holding. The petition for review is denied because Lin failed to submit sufficient evidence demonstrating that her removal would cause the exceptional and extremely unusual hardship to her U.S. citizen children required for cancellation of removal.

Mu Ing Lin, a Chinese national ordered removed in 2006, filed a motion to reopen her immigration case in 2018 after having remained in the United States and giving birth to twin U.S. citizen children. By that time, she satisfied certain eligibility requirements for cancellation of removal, including the ten-year physical presence requirement and the birth of qualifying U.S. citizen children. However, her motion fell short on a critical element: demonstrating that her removal would cause exceptional and extremely unusual hardship to her children. Lin provided only birth certificates and made only vague assertions about hardship without supporting documentation or evidence. The court found these assertions insufficient to meet even the threshold requirement of establishing a prima facie case for relief.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether a motion to reopen for cancellation of removal must include supporting documentation beyond vague assertions
  • What evidence is necessary to establish prima facie eligibility for cancellation based on exceptional and extremely unusual hardship
  • Whether Lin satisfied the ten-year physical presence requirement for cancellation

Procedural posture

Petitioner sought review of the Board of Immigration Appeals' denial of her motion to reopen her removal proceedings.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

OPINION *

Petitioner Mu Ing Lin seeks review of the BIAs denial of her motion to reopen her immigration proceedings. We will deny the petition for review.

Lin is a Chinese national. She was ordered removed by the BIA in 2006. But Lin remained in the country and gave birth to twin U.S. citizen children. In 2018, she filed a motion to reopen her case with the BIA, seeking cancellation of removal. By then, Lin had plainly satisfied two eligibility criteria for cancellation that she had not at the time of her initial removal order: She had accrued ten years of physical presence

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and she had given birth to qualifying U.S. citizen children. See 8 U.S.C. § 1229b(b)(1)(A), (D).

Lins motion to reopen did not, however, demonstrate that she met the key criterion for cancellation: that her removal would cause “exceptional and extremely unusual hardship” to her U.S. citizen children. See id. § 1229b(b)(1)(D). Rather, while a motion to reopen “must be accompanied by the appropriate application for relief and all supporting documentation,” 8 C.F.R. § 1003.2(c)(1), Lin submitted no documentation related to her two children besides their birth certificates. Thus, we are compelled to agree with the BIA that Lin “vaguely assert[ed] in her motion, without reference to any evidence,” that her children would suffer hardship and that these vague assertions were insufficient to clear even the relatively low bar of prima facie eligibility. See AR 4 (citing Matter of L-O-G-, 21 I. & N. Dec. 413, 418 (BIA 1996)). We will therefore deny the petition for review.

FOOTNOTES

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.   The Governments argument that Lin failed to accrue ten years of physical presence is foreclosed by the Supreme Courts recent decision in Niz-Chavez v. Garland, No. 19-863, 593 U.S. ––––, 141 S.Ct. 1474, ––– L.Ed.2d ––––, 2021 WL 1676619, at *9,(Apr. 29, 2021).

KRAUSE, Circuit Judge.