08-1179-ag
Dong v. Holder
BIA
Videla, IJ
A 071 629 020
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 23 rd day of March, two thousand ten.
5
6 PRESENT:
7 RALPH K. WINTER,
8 JOSÉ A. CABRANES,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 ______________________________________
12
13 YI XIN DONG,
14 Petitioner,
15 08-1179-ag
16 v. NAC
17
18 ERIC H. HOLDER, JR., 1 UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Joan Xie, New York, New York.
24
25
26 FOR RESPONDENT: Gregory G. Katsas, Assistant
27 Attorney General, Civil Division;
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
1 Francis W. Fraser, Senior Litigation
2 Counsel; Jacob A. Bashyrov, Trial
3 Attorney, Office of Immigration
4 Litigation, Civil Division, United
5 States Department of Justice,
6 Washington, D.C.
7
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioner, Yi Xin Dong, a native and citizen of the
14 People’s Republic of China, seeks review of a February 13,
15 2008, order of the BIA affirming Immigration Judge (“IJ”)
16 Gabriel C. Videla’s November 1, 2006, decision denying his
17 motion to reconsider. In re Yi Xin Dong, No. A 071 629 020
18 (B.I.A. Feb. 13, 2008); aff’g No. A 071 629 020 (Immig. Ct.
19 N.Y. City Nov. 1, 2006). We assume the parties’ familiarity
20 with the underlying facts and procedural history of the
21 case.
22 The BIA did not abuse its discretion in affirming the
23 IJ’s denial of Dong’s motion to reconsider. Ali v.
24 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). We note at the
25 outset that although Dong’s petition for review is timely
26 only with respect to the BIA’s denial of his motion to
27 reconsider, see 8 U.S.C. § 1252(b)(1), in that decision, the
2
1 BIA effectively reviewed both the IJ’s denial of Dong’s
2 motion to reopen and his motion to reconsider. Thus, we
3 similarly review the agency’s denial of both motions.
4 Under 8 C.F.R. § 1003.2(c)(1), “[a] motion to reopen
5 proceedings for the purpose of submitting an application for
6 relief must be accompanied by the appropriate application
7 for relief.” Here, the IJ denied Dong’s motion to reopen
8 because he failed to submit an asylum application setting
9 forth his new claim. Dong contends that his failure to
10 submit the appropriate application is not a ground to deny
11 his motion. However, that argument runs counter to the
12 plain language of the regulation, requiring that a motion to
13 reopen “must” be accompanied by the appropriate application.
14 8 C.F.R. § 1003.2(c)(1); see Waggoner v. Gonzales, 488 F.3d
15 632, 638-39 (5th Cir. 2007) (holding that “[i]n the absence
16 of this application, the BIA did not abuse its discretion”
17 in denying petitioner’s motion to reopen and remand). 2
18 Furthermore, because Dong filed his motion to
19 reconsider in order to cure the defect the IJ had identified
2
We agree with the BIA that Matter of Yewondwosen,
21 I. & N. Dec. 1025 (BIA 1997), is distinguishable
because, in that case, the government affirmatively
joined in the motion to reopen. Id. at 1027.
3
1 in denying his motion to reopen, rather than to specify
2 errors of fact or law in the IJ’s decision, the agency did
3 not err in denying the motion. See 8 C.F.R. § 1003.2(b)(1);
4 see also Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83,
5 90 (2d Cir. 2001); In re O-S-G-, 24 I. & N. Dec. 56, 58 (BIA
6 2006) (“A motion to reconsider based on a legal argument
7 that could have been raised earlier in the proceedings will
8 be denied.”).
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any pending motion
11 for a stay of removal in this petition is DISMISSED as moot.
12 Any pending request for oral argument in this petition is
13 DENIED in accordance with Federal Rule of Appellate
14 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
18
4