09-1408-ag
Luo v. Holder
BIA
A098 714 117
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 15 th day of April, two thousand ten.
5
6 PRESENT:
7 RALPH K. WINTER,
8 JOSÉ A. CABRANES,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 XIU FENG LUO,
14 Petitioner,
15
16 v. 09-1408-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Lee Ratner, New York, New York
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Leslie McKay, Assistant
27 Director; Kelly J. Walls, Trial
28 Attorney, Office of Immigration
29 Litigation, Civil Division, United
30 States Department of Justice,
31 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 Xiu Feng Luo, a native and citizen of the People’s
6 Republic of China, seeks review of a March 18, 2009, order
7 of the BIA denying his motion to reopen. In re Xiu Feng Luo,
8 No. A098 714 117 (B.I.A. Mar. 18, 2009). We assume the
9 parties’ familiarity with the underlying facts and
10 procedural history of this case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion, mindful of the Supreme Court’s
13 admonition that such motions are “disfavored.” Ali v.
14 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (quoting INS v.
15 Doherty, 502 U.S. 314, 323 (1992)).
16 The BIA did not abuse its discretion by declining to
17 accord evidentiary weight to the affidavits, photographs,
18 and Village Committee letter Luo submitted with her motion
19 to reopen. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
20 F.3d 315, 324 (2d Cir. 2006) (finding that the weight
21 afforded to the applicant’s evidence in immigration
22 proceedings lies largely within the discretion of the
2
1 agency). As the BIA reasonably found, the affidavits
2 contained similar (and similarly vague) language, and the
3 photographs purportedly depicting Luo practicing Falun Gong
4 appeared staged. The BIA also reasonably found that the
5 unauthenticated Village Committee Document contained vague
6 and generalized language similar to that in the affidavits.
7 Under these circumstances, the BIA did not abuse its
8 discretion in denying Luo’s motion to reopen because she
9 failed to establish her prima facie eligibility for relief.
10 See INS v. Abudu, 485 U.S. 94, 104-05 (1988); see also Wei
11 Guang Wang v. BIA, 437 F.3d 270, 273-274 (2d Cir. 2006)
12 (“[I]t would be ironic, indeed, if petitioners . . . who
13 have remained in the United States illegally following an
14 order of deportation, were permitted to have a second and
15 third bite at the apple simply because they managed to marry
16 and have children while evading authorities. This apparent
17 gaming of the system in an effort to avoid deportation is
18 not tolerated by the existing regulatory scheme.”).
19 For the foregoing reasons, the petition for review is
20 DENIED. As we have completed our review, the pending motion
21 for a stay of removal in this petition is DENIED as moot.
22 Any pending request for oral argument in this petition is
3
1 DENIED in accordance with Federal Rule of Appellate
2 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
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