         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




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