Weng Sheng Da v. Holder , 363 F. App'x 70 ( 2010 )

08-5639-ag
Da v. Holder
BIA
A 200 121 996
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 27 th day of January, two thousand ten.
PRESENT:
ROBERT D. SACK,
BARRINGTON D. PARKER,
REENA RAGGI,
Circuit Judges.
_______________________________________
WENG SHENG DA, also known as SHENG DA WENG,
Petitioner,
v. 08-5639-ag
NAC
ERIC H. HOLDER, JR., 1 United States
Attorney General,
Respondent.
_______________________________________
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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.
FOR PETITIONER: Lee Ratner, New York, New York.
FOR RESPONDENT: Michael F. Hertz, Acting Assistant
Attorney General; William C.
Peachey, Assistant Director; Jem C.
Sponzo, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DENIED.
Petitioner Weng Sheng Da, a native and citizen of
China, seeks review of the October 31, 2008 order of the BIA
denying his motion to reopen. In re Weng Sheng Da, a.k.a.
Sheng Da Weng, No. A 200 121 996 (B.I.A. Oct. 31, 2008). We
review the BIA’s denial of a motion to reopen for abuse of
discretion, mindful that such motions are “disfavored.” Ali
v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (quoting INS
v. Doherty, 502 U.S. 314, 322-23 (1992)). In doing so, we
assume the parties’ familiarity with the underlying facts
and the record of prior proceedings, which we reference only
to the extent necessary to explain our decision.
Under 8 C.F.R. § 1003.2(c)(1), “[a] motion to reopen
proceedings for the purpose of submitting an application for
relief must be accompanied by the appropriate application
for relief.” Despite Da’s assertion to the contrary, the
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plain language of § 1003.2(c)(1) makes clear that submission
of the appropriate application for relief is mandatory, not
permissive. See 8 C.F.R. § 1003.2(c)(1)(utilizing “must”
rather than “may”); see also Photopaint Techs., LLC v.
Smartlens Corp., 335 F.3d 152, 156 (2d Cir. 2003)
(characterizing “must” as mandatory verb and “may” as
permissive verb). Accordingly, because Da failed to file an
asylum application with his motion to reopen, the BIA’s
denial of the motion was not an abuse of discretion. See,
e.g., Waggoner v. Gonzales, 488 F.3d 632, 638-39 (5th Cir.
2007).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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