Weng Sheng Da v. Holder

Second Circuit

Weng Sheng Da v. Holder

363 F. App'x 70

CourtCourt of Appeals for the Second Circuit

DecidedJanuary 27, 2010

Docket08-5639-ag

StatusUnpublished

Cited by1 cases

This text of 363 F. App'x 70 (Weng Sheng Da v. Holder) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Weng Sheng Da v. Holder, 363 F. App'x 70 (2d Cir. 2010).

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Opinion

SUMMARY ORDER

Petitioner Weng Sheng Da, a native and citizen of China, seeks review of the October 31, 2008 order of the BIA denying his motion to reopen. In re Weng Sheng Da, a.k.a. Sheng Da Weng, No. A 200 121 996 (B.I.A. Oct. 31, 2008). We review the BIA’s denial of a motion to reopen for abuse of discretion, mindful that such motions are “disfavored.” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (quoting INS v. Doherty, 502 U.S. 314, 322-23, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992)). In doing so, we assume the parties’ familiarity with the underlying facts and the record of prior proceedings, which we reference only to the extent necessary to explain our decision.

Under 8 C.F.R. § 1003.2(c)(1), “[a] motion to reopen proceedings for the purpose of submitting an application for relief must be accompanied by the appropriate application for relief.” Despite Da’s assertion to the contrary, the plain language of § 1003.2(c)(1) makes clear that submission of the appropriate application for relief is mandatory, not permissive. See 8 C.F.R. § 1003.2(c)(l)(utilizing “must” rather than “may”); see also Photopaint Techs., LLC v. Smartless Corp., 335 F.3d 152, 156 (2d Cir.2003) (characterizing “must” as mandatory verb and “may” as permissive verb). Accordingly, because Da failed to file an asylum application with his motion to reopen, the BIA’s denial of the motion was not an abuse of discretion. See, e.g., Waggoner v. Gonzales, 488 F.3d 632, 638-39 (5th Cir.2007).

*71 For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. 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(b).

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SUMMARY ORDER

Petitioner Weng Sheng Da, a native and citizen of China, seeks review of the October 31, 2008 order of the BIA denying his motion to reopen. In re Weng Sheng Da, a.k.a. Sheng Da Weng, No. A 200 121 996 (B.I.A. Oct. 31, 2008). We review the BIA’s denial of a motion to reopen for abuse of discretion, mindful that such motions are “disfavored.” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (quoting INS v. Doherty, 502 U.S. 314, 322-23, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992)). In doing so, we assume the parties’ familiarity with the underlying facts and the record of prior proceedings, which we reference only to the extent necessary to explain our decision.

Under 8 C.F.R. § 1003.2(c)(1), “[a] motion to reopen proceedings for the purpose of submitting an application for relief must be accompanied by the appropriate application for relief.” Despite Da’s assertion to the contrary, the plain language of § 1003.2(c)(1) makes clear that submission of the appropriate application for relief is mandatory, not permissive. See 8 C.F.R. § 1003.2(c)(l)(utilizing “must” rather than “may”); see also Photopaint Techs., LLC v. Smartless Corp., 335 F.3d 152, 156 (2d Cir.2003) (characterizing “must” as mandatory verb and “may” as permissive verb). Accordingly, because Da failed to file an asylum application with his motion to reopen, the BIA’s denial of the motion was not an abuse of discretion. See, e.g., Waggoner v. Gonzales, 488 F.3d 632, 638-39 (5th Cir.2007).

*71 For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. 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(b).

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