JIN MING SUN, a.k.a. Jinming Sun, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.

No. 09-4380-ag.United States Court of Appeals, Second Circuit.
November 2, 2010.

Page 618

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

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.

Joan Xie, New York, NY, for Petitioner.

Tony West, Assistant Attorney General; Luis E. Perez, Senior Litigation Counsel; Elizabeth D. Kurlan, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.


Petitioner Jin Ming Sun, a native and citizen of the People’s Republic of China, seeks review of the September 22, 2009, order of the BIA denying his motion to reopen. In re Jin Ming Sun, No. A093 397 267 (B.I.A. Sept. 22, 2009). We review the BIA’s denial of a motion to reopen for abuse of discretion See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

The BIA denied Sun’s timely motion to reopen based on his failure to establish his prima facie eligibility for relief. The BIA did not abuse its discretion. See I.N.S. v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90
(1988). In denying Sun’s motion, the BIA reasonably accorded the documents he submitted low probative value. Shunfu Li v. Mukasey, 529 F.3d 141, 149 (2d Cir. 2008); See also Qin Wen Zheng v. Gonzales, 500 F.3d 143, 148-49 n. 6 (2d Cir. 2007). Moreover, contrary to Sun’s argument, the BIA did not err in considering that Sun’s wife, as a similarly-situated family member remaining in China, had suffered no further persecution. See Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999).

In addition, Sun failed to submit an application for relief together with his motion, as required under the regulations. 8 C.F.R. § 1003.2(c)(1). The BIA’s denial of the motion to reopen on this ground was not an abuse of discretion.[*]

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

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with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

[*] Sun’s reliance on In re Matter of Yewondwosen, 21 I. N. Dec. 1025, 1027 (BIA 1997), is misplaced because, here, the government did not affirmatively join in the motion to reopen.