         08-3821-ag
         Huang v. Holder
                                                                                        BIA
                                                                                    Chew, IJ
                                                                                 A72 183 150
                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.     CITATION TO SUMMARY ORDERS
     FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
     AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.     IN A BRIEF OR OTHER PAPER IN WHICH A
     LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
     ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
     “(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
     TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
     BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
     PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
     HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
     ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
     DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.


 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 30 th day of December, two thousand                nine.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                JOSEPH M. McLAUGHLIN,
 9                DEBRA ANN LIVINGSTON,
10                         Circuit Judges.
11       _______________________________________
12
13       YONG KANG HUANG,
14                Petitioner,
15
16                         v.                                   08-3821-ag
17
18       ERIC H. HOLDER, JR., 1 UNITED STATES
19       ATTORNEY GENERAL
20                Respondent.
21       _______________________________________


                  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 the respondent in this case.
 1   FOR PETITIONER:          Gary J. Yerman, New York, New York.
 2
 3   FOR RESPONDENT:          Michael F. Hertz, Acting Assistant
 4                            Attorney General, Stephen J. Flynn,
 5                            Assistant Director, Jeffrey R. Meyer,
 6                            Attorney, Office of Immigration
 7                            Litigation, United States Department
 8                            of Justice, Washington, D.C.
 9
10       UPON DUE CONSIDERATION of this petition for review of a

11   Board of Immigration Appeals (“BIA”) decision, it is hereby

12   ORDERED, ADJUDGED, AND DECREED, that the petition for review

13   is DENIED.

14       Petitioner Yong Kang Huang, a native and citizen of the

15   People’s Republic of China, seeks review of the July 17,

16   2008 order of the BIA affirming the May 22, 2007 decision of

17   Immigration Judge (“IJ”) George T. Chew denying his motion

18   to reopen, In re Yong Kang Huang, No. A72 183 150 (B.I.A.

19   Jul. 17, 2008), aff’g No. 72 183 150 (Immig. Ct. N.Y. City

20   May 22, 2007).    We assume the parties’ familiarity with the

21   underlying facts and procedural history in this case.

22       When the BIA adopts the decision of the IJ and

23   supplements the IJ’s decision, this Court reviews the

24   decision of the IJ as supplemented by the BIA.    See Yan Chen

25   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).    We review

26   the BIA’s denial of a motion to reopen for abuse of



                                    2
1    discretion.   See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.

2    2005) (per curiam).

3        The Supreme Court has made clear that the agency may

4    properly deny a motion to reopen in its discretion,

5    irrespective of the movant’s eligibility for relief, where

6    the underlying relief is discretionary.   See INS v. Abudu,

7    485 U.S. 94, 105 (1988) (finding that “in cases in which the

8    ultimate grant of relief is discretionary,” the agency may

9    jump ahead and determine that the movant would not be

10   entitled to discretionary relief); see also 8 C.F.R.

11   § 1003.2(a) (“The Board has discretion to deny a motion to

12   reopen even if the party moving has made out a prima facie

13   case for relief.”); 8 C.F.R. § 1003.23(b)(3).    Here, the IJ

14   refused to exercise his discretion to grant Huang’s motion

15   to reopen in part because Huang had failed to comply with a

16   prior voluntary departure order.   The BIA affirmed that

17   decision, and we find no reason to disturb it.

18       Subject to a number of qualifications, the Attorney

19   General, at his discretion, may grant an alien’s request to

20   depart the United States voluntarily, either in lieu of or

21   prior to the completion of removal proceedings or at the

22   conclusion of those proceedings.   8 U.S.C. § 1229c(a)(1),


                                   3
1    (b)(1).    From the alien’s perspective, voluntary departure

2    offers certain benefits, among them avoiding the penalties

3    attendant to deportation, which include five- or ten-year

4    bars on seeking readmission to the country.      See Dada v.

5    Mukasey, 128 S. Ct. 2307, 2319 (2008) (“Voluntary departure

6    is an agreed-upon exchange of benefits, much like a

7    settlement agreement. In return for anticipated benefits,

8    including the possibility of readmission, an alien who

9    requests voluntary departure represents that he or she ‘has

10   the means to depart the United States and intends to do so’

11   promptly.”).    This Court has observed that “[v]oluntary

12   departure under [8 U.S.C.

13   § 1229c] benefits both the government and the alien who

14   obtains it.”    Thapa v. Gonzales, 460 F.3d 323, 328 (2d Cir.

15   2006); Singh v. Gonzales, 468 F.3d 135, 140 (2d Cir. 2006).

16   However, “for an alien, serious consequences result” from

17   “compliance with a voluntary departure order,” as well as

18   from noncompliance.    Thapa, 460 F.3d at 328.    The agency’s

19   denial of Huang’s motion to reopen was reasonably based on

20   his failure to live up to his end of the voluntary departure

21   bargain.

22       In support of his discretionary denial of Huang’s

23   motion, the IJ noted our application of the fugitive



                                    4
1    disentitlement doctrine in Qian Gao v. Gonzales, 481 F.3d

2    173 (2d Cir. 2007), concluding that while not directly on

3    point, the case provided guidance.      In Qian Gao, we stated

4    that the fugitive disentitlement doctrine “applies with full

5    force to an alien who fails to comply with a notice to

6    surrender for deportation.” 481 F.3d at 176.      Huang argues

7    that the IJ erred in concluding that the rationale behind

8    the fugitive disentitlement doctrine is applicable to his

9    case.   That argument is not persuasive.     Huang is not a

10   fugitive as defined in Qian Gao because there is no evidence

11   that the agency sent him a notice to surrender for

12   deportation (“bag-and-baggage letter”) with which he failed

13   to comply.     See id. at 175-76.   Nevertheless, the reasoning

14   provided by this Court in Qian Gao provides a useful

15   analogy.     Huang’s failure to comply with the voluntary

16   departure order “undercuts the authority and dignity of the

17   judicial process” in that he “disdain[ed] the authority of

18   the [agency] in the very manner in which he seeks relief.”

19   Id. at 177.     As this Court has observed, “[e]veryone

20   understands that the [government] is overwhelmed with

21   petitioners and procedures, and that it heavily relies on

22   the word and voluntary compliance of numerous aliens within


                                     5
1    our borders.   It is easy to game this system, but we should

2    not treat disregard of [government] directives as a norm.”

3    Ofusu v. McElroy, 98 F.3d 694, 702-03 (2d Cir. 1996).

4        Because the IJ’s discretionary denial of Huang’s

5    untimely motion is dispositive, see Abudu, 485 U.S. at 104-

6    05, we need not consider his arguments related to his family

7    planning claim.

8         For the foregoing reasons, the petition for review is

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

10   removal that the Court previously granted in this petition

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

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

13   oral argument in this petition is DENIED in accordance with

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

15   Circuit Local Rule 34(b).

16                               FOR THE COURT:
17                               Catherine O’Hagan Wolfe, Clerk
18
19                               By:___________________________




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