09-5357-ag
Xu v. Holder
BIA
A072 432 306
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 31 st day of January, two thousand eleven.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 REENA RAGGI,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _______________________________________
12
13 WEN LU XU,
14 Petitioner,
15
16 v. 09-5357-ag
17 NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONERS: Michael Brown, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Douglas E. Ginsburg,
28 Assistant Director; Karen L. Melnik,
29 Trial Attorney, Office of
30 Immigration Litigation, Civil
31 Division, United States Department
32 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Wen Lu Xu, a native and citizen of the People’s
6 Republic of China, seeks review of a December 8, 2009, order
7 of the BIA, denying his motion to reconsider. In re Wen Lu
8 Xu, No. A072 432 306 (B.I.A. Dec. 8, 2009). We assume the
9 parties’ familiarity with the underlying facts and
10 procedural history of the case.
11 We review the BIA’s denial of a motion to
12 reconsider for abuse of discretion. See Jin Ming Liu v.
13 Gonzales, 439 F.3d 109, 111 (2d Cir. 2006). The agency’s
14 regulations provide that a motion to reconsider must specify
15 errors of fact or law in the challenged BIA decision.
16 See 8 C.F.R. § 1003.2(b)(1); Ke Zhen Zhao v. U.S. Dep’t of
17 Justice, 265 F.3d 83, 90 (2d Cir. 2001).
18 The BIA did not abuse its discretion in denying Xu’s
19 motion to reconsider because he failed to identify errors of
20 fact or law in the agency’s denial of his motion to reopen
21 as required by 8 C.F.R. § 1003.2(b)(1). As the BIA found,
22 it was entitled to rely on the underlying adverse
2
1 credibility determination to disregard the documentary
2 evidence Xu submitted with his prior motion to reopen. See
3 Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147 (2d Cir. 2007)
4 (holding that the BIA may decline to credit documentary
5 evidence submitted with a motion to reopen by an alien who
6 was found not credible in the underlying proceeding).
7 For the foregoing reasons, the petition for review is
8 DENIED. As we have completed our review, any stay of
9 removal that the Court previously granted in this petition
10 is VACATED, and any pending motion for a stay of removal in
11 this petition is DISMISSED as moot.
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
15
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