         09-1408-ag
         Luo v. Holder
                                                                                       BIA
                                                                               A098 714 117
                          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 15 th day of April, two thousand ten.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                JOSÉ A. CABRANES,
 9                GERARD E. LYNCH,
10                   Circuit Judges.
11       _____________________________________
12
13       XIU FENG LUO,
14                Petitioner,
15
16                       v.                                     09-1408-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Lee Ratner, New York, New York
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Leslie McKay, Assistant
27                                     Director; Kelly J. Walls, Trial
28                                     Attorney, Office of Immigration
29                                     Litigation, Civil Division, United
30                                     States Department of Justice,
31                                     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        Xiu Feng Luo, a native and citizen of the People’s

6    Republic of China, seeks review of a March 18, 2009, order

7    of the BIA denying his motion to reopen. In re Xiu Feng Luo,

8    No. A098 714 117 (B.I.A. Mar. 18, 2009).   We assume the

9    parties’ familiarity with the underlying facts and

10   procedural history of this case.

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

12   abuse of discretion, mindful of the Supreme Court’s

13   admonition that such motions are “disfavored.”   Ali v.

14   Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (quoting INS v.

15   Doherty, 502 U.S. 314, 323 (1992)).

16       The BIA did not abuse its discretion by declining to

17   accord evidentiary weight to the affidavits, photographs,

18   and Village Committee letter Luo submitted with her motion

19   to reopen.   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

20   F.3d 315, 324 (2d Cir. 2006) (finding that the weight

21   afforded to the applicant’s evidence in immigration

22   proceedings lies largely within the discretion of the



                                   2
1    agency).    As the BIA reasonably found, the affidavits

2    contained similar (and similarly vague) language, and the

3    photographs purportedly depicting Luo practicing Falun Gong

4    appeared staged.    The BIA also reasonably found that the

5    unauthenticated Village Committee Document contained vague

6    and generalized language similar to that in the affidavits.

7    Under these circumstances, the BIA did not abuse its

8    discretion in denying Luo’s motion to reopen because she

9    failed to establish her prima facie eligibility for relief.

10   See INS v. Abudu, 485 U.S. 94, 104-05 (1988); see also Wei

11   Guang Wang v. BIA, 437 F.3d 270, 273-274 (2d Cir. 2006)

12   (“[I]t would be ironic, indeed, if petitioners . . . who

13   have remained in the United States illegally following an

14   order of deportation, were permitted to have a second and

15   third bite at the apple simply because they managed to marry

16   and have children while evading authorities.    This apparent

17   gaming of the system in an effort to avoid deportation is

18   not tolerated by the existing regulatory scheme.”).

19       For the foregoing reasons, the petition for review is

20   DENIED.    As we have completed our review, the pending motion

21   for a stay of removal in this petition is DENIED as moot.

22   Any pending request for oral argument in this petition is


                                    3
1   DENIED in accordance with Federal Rule of Appellate

2   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

3                              FOR THE COURT:
4                              Catherine O’Hagan Wolfe, Clerk
5
6
7




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