         09-5357-ag
         Xu v. Holder
                                                                                       BIA
                                                                               A072 432 306
                             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 31 st day of January, two thousand eleven.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                REENA RAGGI,
 9                GERARD E. LYNCH,
10                   Circuit Judges.
11       _______________________________________
12
13       WEN LU XU,
14                Petitioner,
15
16                      v.                                      09-5357-ag
17                                                              NAC
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONERS:              Michael Brown, New York, New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Douglas E. Ginsburg,
28                                     Assistant Director; Karen L. Melnik,
29                                     Trial Attorney, Office of
30                                     Immigration Litigation, Civil
31                                     Division, United States Department
32                                     of Justice, Washington, D.C.
1        UPON DUE CONSIDERATION of this petition for review of a

2    decision of the Board of Immigration Appeals (“BIA”), it is

3    hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

4    review is DENIED.

5             Wen Lu Xu, a native and citizen of the People’s

6    Republic of China, seeks review of a December 8, 2009, order

7    of the BIA, denying his motion to reconsider.     In re Wen Lu

8    Xu, No. A072 432 306 (B.I.A. Dec. 8, 2009).     We assume the

9    parties’ familiarity with the underlying facts and

10   procedural history of the case.

11            We review the BIA’s denial of a motion to

12   reconsider for abuse of discretion.   See Jin Ming Liu v.

13   Gonzales, 439 F.3d 109, 111 (2d Cir. 2006).     The agency’s

14   regulations provide that a motion to reconsider must specify

15   errors of fact or law in the challenged BIA decision.

16   See 8 C.F.R. § 1003.2(b)(1); Ke Zhen Zhao v. U.S. Dep’t of

17   Justice, 265 F.3d 83, 90 (2d Cir. 2001).

18       The BIA did not abuse its discretion in denying Xu’s

19   motion to reconsider because he failed to identify errors of

20   fact or law in the agency’s denial of his motion to reopen

21   as required by 8 C.F.R. § 1003.2(b)(1).    As the BIA found,

22   it was entitled to rely on the underlying adverse


                                  2
1    credibility determination to disregard the documentary

2    evidence Xu submitted with his prior motion to reopen.    See

3    Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147 (2d Cir. 2007)

4    (holding that the BIA may decline to credit documentary

5    evidence submitted with a motion to reopen by an alien who

6    was found not credible in the underlying proceeding).

7        For the foregoing reasons, the petition for review is

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

9    removal that the Court previously granted in this petition

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

11   this petition is DISMISSED as moot.

12                           FOR THE COURT:
13                           Catherine O’Hagan Wolfe, Clerk
14
15




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