         08-5445-ag
         Xiao v. Holder
                                                                                        BIA
                                                                               Balasquide, IJ
                                                                               A073 174 846
                               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 New
 4       York, on the 16 th day of June, two thousand ten.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                RICHARD C. WESLEY,
 9                PETER W. HALL,
10                      Circuit Judges.
11       _______________________________________
12
13       JI FEN XIAO,
14                Petitioner,
15
16                            v.                                08-5445-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., 1 UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                Nathan Weill, New York, New York.


                   Pursuant to Federal Rule of Appellate Procedure
                          1

             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    FOR RESPONDENT:        Michael F. Hertz, Acting Assistant
2                           Attorney   General;  Michelle   Gorden
3                           Latour, Assistant Director; Timothy G.
4                           Hayes,   Trial  Attorney,  Office   of
5                           Immigration Litigation, United States
6                           Department of Justice, Washington,
7                           D.C.
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       Ji Fen Xiao, a native and citizen of the People’s

14   Republic of China, seeks review of an October 15, 2008,

15   order of the BIA summarily affirming the April 23, 2007,

16   decision of Immigration Judge (“IJ”) Javier Balasquide,

17   which denied his motion to reconsider.   In re Ji Fen Xiao,

18   No. A073 174 846 (B.I.A. Oct. 15, 2008), aff’g No. A073 174

19   846 (Immig. Ct. N.Y. City Apr. 23, 2007).   We assume the

20   parties’ familiarity with the underlying facts and

21   procedural history in this case.

22       As an initial matter, the Xiao only argues that the BIA

23   erred by ignoring his motion to remand, thus waiving all

24   other arguments before this Court.   See Yueqing Zhang v.

25   Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005) .     We

26   find no abuse of discretion, however, in the BIA’s summary



                                   2
1    affirmance of the IJ’s decision.     The BIA was under no

2    obligation to consider the documents that Xiao submitted for

3    the first time on appeal.     See De La Rosa v. Holder, — F.3d

4    —, No. 09-3099-ag, 2010 WL 653471, at *6 n.2 (2d Cir. Feb.

5    25, 2010) (explaining that when the BIA is presented with

6    new evidence on appeal, it should either “reject the

7    evidence without considering it or move, sua sponte, to

8    reopen the case before the IJ with the additional

9    evidence”); see also Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.

10   2005); 8 C.F.R. § 1003.1(d)(3)(iv).

11       For the foregoing reasons, the petition for review is

12   DENIED.   As we have completed our review, any stay of

13   removal that the Court previously granted in this petition

14   is VACATED, and any pending motion for a stay of removal in

15   this petition is DISMISSED as moot. Any pending request for

16   oral argument in this petition is DENIED in accordance with

17   Federal Rule of Appellate Procedure 34(a)(2), and Second

18   Circuit Local Rule 34.1(b).

19                                 FOR THE COURT:
20                                 Catherine O’Hagan Wolfe, Clerk
21




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