Ali v. Holder

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