Ai Kai Jian v. Gonzales

183 F. App'x 129

• Court: Court of Appeals for the Second Circuit
• Decided: June 8, 2006
• Docket: No. 04-2958-ag
• Status: Published

Opinion

SUMMARY ORDER

Ai Kai Jian petitions for review of the BIA’s denial of his motion to reconsider the BIA’s denial of his previous motion. We presume the parties’ familiarity with the underlying facts and procedural history of the case.

This Court reviews the BIA’s denial of a motion to reconsider for abuse of discretion. See Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir.2006). The regulations state that a party may file only one motion to reconsider any given decision, and one may not seek reconsideration of a denial of a previous motion to reconsider. 8 C.F.R. § 1003.2(b)(2). The BIA correctly found that these regulations barred Jian’s second motion to reconsider if his first motion was one to reconsider. The BIA ordinarily construes motions according to their substance, not title. See, e.g., In re H-A-, 22 I. & N. Dec. 728, 1999 WL (BIA 1999). While a motion to reconsider must specify errors of fact or law, 8 C.F.R. § 1003.2(b)(1), a motion to reopen must offer new, previously unavailable and undiscoverable evidence which is material to the petitioner’s claim, 8 C.F.R. § 1003.2(c)(1). In his first motion, Jian offered a corrected translation of the sterilization notice, stating that his wife had been aborted rather than sterilized. Thus, the motion could be construed as a motion to reconsider the evidence offered at the hearing.

For the foregoing reasons, the petition for review is DENIED. Jian’s motion for stay of removal is DENIED. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1).