11-328-ag
Ali v. Holder
BIA
A095 423 710
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 31st day of May, two thousand twelve.
5
6 PRESENT:
7 RALPH K. WINTER,
8 REENA RAGGI,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 ______________________________________
12
13 USMAN ALI,
14 Petitioner,
15 11-328-ag
16 v. NAC
17
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Amy Nussbaum Gell, Gell & Gell, New
24 York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Susan K. Houser, Senior
28 Litigation Counsel; Francis W.
29 Fraser, Senior Litigation Counsel,
30 Office of Immigration Litigation,
31 United States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Usman Ali, a native and citizen of Pakistan,
6 seeks review of a December 29, 2010 decision of the BIA
7 denying his motion to reopen his removal proceedings. In re
8 Ali, No. A095 423 710 (B.I.A. Dec. 29, 2010). We review the
9 BIA’s denial of a motion to reopen for abuse of discretion.
10 See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). We
11 assume the parties’ familiarity with the underlying facts
12 and procedural history of the case.
13 In its decision denying Ali’s motion to reopen, the
14 BIA determined that Ali had not satisfied the regulatory
15 requirements for reopening removal proceedings because he
16 had failed to submit an application for relief with his
17 motion. Ali does not challenge this determination on
18 appeal. Under 8 C.F.R. § 1003.2(c)(1), “[a] motion to
19 reopen proceedings for the purpose of submitting an
20 application for relief must be accompanied by the
21 appropriate application for relief and all supporting
22 documentation.” 8 C.F.R. § 1003.2(c)(1) (emphasis
2
1 supplied). “[T]he plain language of § 1003.2(c)(1) makes
2 clear that submission of the appropriate application for
3 relief is mandatory, not permissive.” Weng Sheng Da v.
4 Holder, No. 08-5639-ag, 363 Fed. App’x 70, 70 (2d Cir. Jan.
5 27, 2010) (summary order). Accordingly, because Ali failed
6 to file an asylum application with his motion to reopen, the
7 BIA’s denial of the motion was not an abuse of discretion.
8 Id.; accord Lin Xing Jiang v. Holder, 639 F.3d 751, 757 (7th
9 Cir. 2011); Palma-Mazariegos v. Keisler, 504 F.3d 144, 147
10 (1st Cir. 2007); Waggoner v. Gonzales, 488 F.3d 632, 638-39
11 (5th Cir. 2007). As a separate matter, we have considered
12 Ali’s arguments on appeal and conclude that, even had he
13 submitted the required application, his appeal would fail:
14 the BIA did not abuse its discretion in denying Ali’s motion
15 on the merits.
16 For the foregoing reasons, the petition for review is
17 DENIED. As we have completed our review, any stay of
18 removal that the Court previously granted in this petition
19 is VACATED, and any pending motion for a stay of removal in
20 this petition is DISMISSED as moot. Any pending request for
21 oral argument in this petition is DENIED in accordance with
3
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
6
4