Rulings by summary order do not have precedential effect. Citation to summary orders filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court's Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation "summary order"). A party citing a summary order must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 2 day of December, two thousand and ten.
PRESENT: RALPH K. WINTER, JOSE A. CABRANES, DENNYCHIN, Circuit Judges.
UPON CONSIDERATION of the petition for review of a Board of Immigration Appeals decision, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.
Petitioner Chun Wang Lin ("petitioner" or "Lin")petitions for review of an October 31, 2007 decision by the Board of Immigration Appeals (BIA) denying his motion to file a successive asylum application based on changed personal circumstances. The BIA held that Lin, as an alien subject to a final order of removal, could not file a successive application for asylum unless he did so as part of a timely and properly filed motion to reopen the proceedings. See Matter of C-W-L, 24 I. & N. Dec. 346, 349-54 (BIA 2007) (interpreting INA §§ 208(a)(2)(D), 240(c)(7), and 8 C.F.R. §§ 1003.2, 1208.4).
On August 15, 2008, after Lin had filed his opening brief with our Court, we issued our decision in Yuen Jin v. Mukasey, 538 F.3d 143 (2d Cir. 2008). In Jin, we affirmed the BIA's holding in Matter of C-W-L with respect to discretionary forms of relief, including asylum. We also held (1) that the BIA's decision did not violate an alien's right to due process of law, because aliens do not enjoy a protected liberty or property interest in the right to discretionary relief, and (2) even assuming that aliens enjoy a protected constitutional interest in asylum, the procedures required by the BIA satisfy due process of law. Id. at 156-57. We did not, however, reach the question of whether the BIA's requirements violate due process of law with respect to mandatory forms of relief, including relief under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment ("CAT"), Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T. S. 85, and relief under the statute providing for withholding of removal, 8 U.S.C. § 1231(b)(3) (2006). Id. at 157 n.6 ("[A]ny 'complications' in due process analysis arising from interests in withholding of removal or relief under the CAT are not at issue here.").
Lin now argues that the BIA's decision in Matter of C-W-L, 24 I. & N. Dec. 346, violates due process of law with respect to relief under CAT and the withholding of removal statute. We assume the parties' familiarity with the remaining factual and procedural history of the case.
The government asserts that we should not reach the constitutional question presented on appeal because Lin did not adequately preserve the claim for review. We disagree. Despite Lin's relatively cursory consideration of the due process issue, he goes beyond merely stating the issue without argument, see Gross v. Rell, 585 F.3d 72, 95 (2d v. Restrepo, 986 F.2d 1462, 1463 (2d Cir. 1993), and beyond incorporating the claim only by reference to an earlier proceeding or filing, see Frank v. United States, 78 F.3d 815, 833 (2d Cir. 1996), vacated on other grounds, 521 U.S. 1114 (1997). In sum, we find that he preserved his claim.
We review the BIA's denial of a motion to reopen for abuse of discretion, Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005), and its legal conclusions de novo, Perez Suriel de Batista v. Gonzales, 494 F.3d 67, 69 (2d Cir. 2007). Lin argues that he was deprived of due process of law by the BIA's requirement that an alien must file a successive asylum application as part of a timely motion to reopen the proceedings. Assuming arguendo that Lin is entitled to protection under the Due Process Clause, we hold that Lin received adequate process.
In evaluating the constitutional sufficiency of procedural protections, we consider the three factors prescribed by Mathews v. Eldridge, 424 U.S. 319, 335 (1976): (1) "the private interest at stake," (2) "the risk of an erroneous deprivation of that interest through the procedures used and the probable value (if any) of alternative procedures," and (3) "the government's interest, including the possible burdens of alternative procedures." Kuck v. Danaher, 600 F.3d 159, 163 (2d Cir. 2010) (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). We also note that "[t]he requirements of the due process clause are flexible and dependent on the circumstances of the particular situation examined. . . . [W]e think that the protected right to avoid deportation or return to a ...