Zhang v. Holder, (2nd Cir. 2009)
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08-5383-ag
Zhang v. Holder
BIA
A070-652-805
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 nine.
PRESENT:
HON. GUIDO CALABRESI,
HON. ROBERT A. KATZMANN,
HON. DEBRA ANN LIVINGSTON,
Circuit Judges.
JIN XI ZHANG,
Petitioner,
v. 08-5383-ag
NAC
ERIC H. HOLDER JR., UNITED STATES
ATTORNEY GENERAL, *
Respondent.
FOR PETITIONER: Andre Sobolevsky, New York, New York.
FOR RESPONDENT: Michael F. Hertz, Acting Assistant Attorney General; Terri J. Scadron, Assistant Director; Greg D. Mack, United States Department of Justice, Office of Immigration Litigation, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.
Jin Xi Zhang, a native and citizen of the People's Republic of China, seeks review of an October 28, 2008 order of the BIA denying his third motion to reopen his removal proceedings. In re Jin Xi Zhang, No. A70 652 805 (B.I.A.
Oct. 28, 2008). We assume the parties' familiarity with the underlying facts and procedural history of the case.
We review the BIA's denial of a motion to reopen for abuse of discretion, mindful of the Supreme Court's admonition that such motions are "disfavored." Ali v.
Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (internal quotation marks omitted). Here, the BIA did not abuse its discretion in finding that Zhang failed to establish prima facie eligibility for the underlying relief he sought. See Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005). The BIA properly found that Zhang was not eligible for relief based on his wife's alleged forced sterilization, arrest, and fine. See Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d 296, 309 (2d Cir. 2007). The BIA also reasonably declined to accord weight to the village committee notice Zhang submitted because it was inconsistent with evidence that he had submitted to the agency. As the agency had previously found Zhang not credible, it was under no obligation to credit the evidence he submitted with his motion. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-47 (2d Cir. 2007); see also Kaur v. BIA, 413 F.3d 232, 234 (2d Cir. 2005) (per curiam).
The BIA's finding that Zhang failed to establish his prima facie eligibility for the relief he sought was dispositive of his motion. See INS v. Abudu, 485 U.S. 94, 104-05 (1988).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT: Catherine O'Hagan Wolfe, Clerk By:
* 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 respondent in this case.
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