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Keywords

statuteappealhearingmotionasylumvisacitizenshipdeportation

motionvisacitizenshipnaturalization

Related Cases

Ri Kai Lin v. Bureau of Citizenship & Immigration Servs.

Facts

Ri Kai Lin, a citizen of the People's Republic of China, entered the United States without inspection in September 1986. He filed an application to adjust his status to that of a legal permanent resident under the CSPA in 1993, which was denied due to his entry without inspection. Lin later filed for asylum and was placed in deportation proceedings. After several hearings, an IJ granted his CSPA application, but the government appealed, leading to the BIA's conclusion that Lin was ineligible to adjust status.

Ri Kai Lin, a citizen of the People's Republic of China, entered the United States without inspection in September 1986. In September 1993, he filed an application to adjust his status to that of a legal permanent resident pursuant to the Chinese Student Protection Act of 1992, Pub. L. No. 102-404, 106 Stat. 1969 ('CSPA'), with the former Immigration and Naturalization Service ('INS'). In October 1993, the INS denied his application, finding that he was not eligible to adjust status under 8 U.S.C 1255(a) because he had entered without inspection.

Issue

Whether the BIA abused its discretion in denying Lin's motions to reconsider and to reopen based on his ineligibility for adjustment of status under the CSPA and INA 245(i).

Rule

The BIA's denial of a motion to reopen or reconsider is reviewed for an abuse of discretion, and the BIA's interpretation of statutory provisions is deferred to if reasonable.

The BIA's denial of a motion to reopen or reconsider is reviewed for an abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam); Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006) (per curiam).

Analysis

The court found that the BIA reasonably concluded that Lin could not adjust his status under the CSPA in conjunction with INA 245(i) because he had not filed an approvable visa petition. The BIA's interpretation of the statutes was deemed reasonable, and it did not abuse its discretion in denying Lin's motions.

We find reasonable the BIA's conclusion that even if Lin was considered deemed to have had a visa petition approved for purposes of adjustment, he did not, in fact, file an approvable visa petition under 204(a) as required by INA 245(i), and was therefore not eligible to adjust under that provision.

Conclusion

The court denied the petition for review, affirming the BIA's decisions.

For the foregoing reasons, the petition for review is DENIED, and the pending motion for a stay of removal in this petition is DENIED as moot.

Who won?

Bureau of Citizenship & Immigration Services prevailed because the court upheld the BIA's decisions denying Lin's motions.

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