Chen v. Gonzales, (2nd Cir. 2007)

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06-5672-ag

Chen v. Gonzales

BIA

IJ McManus

A 72 380 055

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R U L I N G S BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED

A F T E R JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 0.23 AND

F E D E R A L RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT

C I T E S A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION

M U S T EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: "(SUMMARY ORDER)."

U N L E S S THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE

W I T H O U T PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV), THE

P A R T Y CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER

W I T H THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO COPY IS SERVED BY REASON OF THE

A V A I L A B I L I T Y OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT

D A T A B A S E AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

A t a stated term of the United States Court of Appeals

f o r the Second Circuit, held at the Daniel Patrick Moynihan

U n i t e d States Courthouse, 500 Pearl Street, in the City of

N e w York, on the 8 t h day of August, two thousand seven.

PRESENT:

H O N . WILFRED FEINBERG,

H O N . JOSÉ A. CABRANES,

H O N . RICHARD C. WESLEY,

C i r c u i t Judges.

M I N SHENG CHEN,

Petitioner,

v. 06-5672-ag

NAC

U N I T E D STATES ATTORNEY GENERAL,

Respondent.

F O R PETITIONER: L i u Yu, New York, New York.

F O R RESPONDENT: C h u c k Rosenberg, United States

A t t o r n e y ; Kathleen Blomquist,

S p e c i a l Assistant United States

A t t o r n e y , Alexandria, Virginia.

U P O N DUE CONSIDERATION of this petition for review of a

d e c i s i o n of the Board of Immigration Appeals ("BIA"), it is h e r e b y ORDERED, ADJUDGED, AND DECREED that the petition for r e v i e w is DENIED.

P e t i t i o n e r Min Sheng Chen, a native and citizen of the P e o p l e ' s Republic of China, seeks review of a November 21, 2 0 0 6 order of the BIA denying his motion to reopen removal proceedings. In re Min Sheng Chen, No. A72 380 055 (B.I.A.

N o v . 21, 2006). We assume the parties' familiarity with the u n d e r l y i n g facts and procedural history in this case.

W e review the BIA's denial of a motion to reopen for an a b u s e of discretion. See Ke Zhen Zhao v. U.S. Dep't of J u s t i c e , 265 F.3d 83, 93 (2d Cir. 2001). An abuse of d i s c r e t i o n may be found where the BIA's decision "provides n o rational explanation, inexplicably departs from e s t a b l i s h e d policies, is devoid of any reasoning, or c o n t a i n s only summary or conclusory statements; that is to s a y , where the Board has acted in an arbitrary or capricious manner." Id. The BIA may properly deny a motion to reopen w h e n the movant fails to present material, previously u n a v a i l a b l e evidence, or fails to establish prima facie e l i g i b i l i t y for the relief sought. 8 C.F.R. § 1003.2(c)(1); I N S v. Abudu, 485 U.S. 94, 104-05 (1988).

H e r e , Chen does not argue in his brief that the BIA e r r e d in denying the motion to reopen that is before us.

I n s t e a d , Chen argues the merits of the agency's denial of h i s underlying claims for relief and the merits of a p r e v i o u s motion to reopen, neither of which is before us.

S e e Stone v. INS, 514 U.S. 386, 405 (1995) (each petition f o r review is treated as challenging only the BIA decision f r o m which it was timely filed). As he presents no a d d i t i o n a l arguments, Chen has waived any challenge to the B I A ' s November 2006 decision, the only decision that is p r o p e r l y the subject of his petition for review.

A c c o r d i n g l y , we deny the petition for review, noting t h a t even if we had reviewed the BIA's denial of Chen's m o t i o n to reopen, we would find no abuse of discretion.

F o r the foregoing reasons, the petition for review is DENIED.

F O R THE COURT: C a t h e r i n e O'Hagan Wolfe, Clerk B y : O l i v a M. George, Deputy Clerk

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