Cao v. Mukasey, (2nd Cir. 2008)
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07-3467-ag
Cao v. Mukasey
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 18 th day of June, two thousand eight.
PRESENT:
HON. JOSEPH M. McLAUGHLIN,
HON. CHESTER J. STRAUB,
HON. BARRINGTON D. PARKER,
Circuit Judges.
MEI HONG CAO,
Petitioner,
v. 07-3467-ag
NAC
MICHAEL B. MUKASEY,
UNITED STATES ATTORNEY GENERAL, 1
Respondent.
FOR PETITIONER: Thomas V. Massucci, New York, New York.
FOR RESPONDENT: Jeffrey S. Bucholtz, Acting Assistant Attorney General; Mark C.
Walters, Assistant Director; Joanne E. Johnson, Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals ("BIA"), it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED.
Mei Hong Cao, a native and citizen of China, seeks review of a July 19, 2007 order of the BIA denying her motion to reopen. In re Mei Hong Cao, No. A95 866 906 (B.I.A. Jul. 19, 2007). We assume the parties' familiarity with the underlying facts and procedural history of this case.
This Court reviews the BIA's denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). "An abuse of discretion may be found . . . where the [BIA's] decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner." Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (internal citations omitted).
"A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing." 8 C.F.R. § 1003.2(c)(1) (2005). Here, the BIA properly found that Cao had failed to establish that the evidence she provided in support of her motion to reopen was not available and could not have been discovered or presented at the former hearing.
In moving to reopen her case, Cao relied exclusively on an "Original Certificate from HongYi Villager Committee" that purports to "certify that Cao, MeiHong has been working continually as a baby sitter in HongYi Village . . . from the year of 1989 to 2001." We have held that where a petitioner makes "no effort to demonstrate that the [] additional documentary evidence" meets the requirements that "it (1) is material, (2) was not previously available, and (3) could not have been discovered or presented at the initial hearing," the BIA is under no obligation to consider it. See Jian Yun Zheng v. U.S. Dep't of Justice, 409 F.3d 43, 48 (2d Cir. 2005). Although Cao correctly notes that this certificate postdates her proceedings before the Immigration Judge, she does not explain why she failed to obtain such a document earlier. Because Cao made no effort to explain why this certificate was previously unavailable or undiscoverable, the BIA's decision to deny the motion was neither arbitrary nor capricious. Id. Therefore, the BIA did not abuse its discretion in denying the motion. Kaur, 413 F.3d at 233-34.
For the foregoing reasons, the petition for review is DENIED.
FOR THE COURT: Catherine O'Hagan Wolfe, Clerk By:
1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Michael B. Mukasey is automatically substituted for former Attorney General Alberto R. Gonzales as the respondent in this case.
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