08-5639-ag
    Da v. Holder
                                                                                   BIA
                                                                          A 200 121 996
                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


         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 27 th day of January, two thousand ten.

    PRESENT:
             ROBERT D. SACK,
             BARRINGTON D. PARKER,
             REENA RAGGI,
                      Circuit Judges.
    _______________________________________

    WENG SHENG DA, also known as SHENG DA WENG,
                      Petitioner,

                       v.                                  08-5639-ag
                                                           NAC
    ERIC H. HOLDER, JR., 1 United States
    Attorney General,
                      Respondent.
    _______________________________________




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              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.
FOR PETITIONER:         Lee Ratner, New York, New York.

FOR RESPONDENT:         Michael F. Hertz, Acting Assistant
                        Attorney General; William C.
                        Peachey, Assistant Director; Jem C.
                        Sponzo, Trial Attorney, Office of
                        Immigration Litigation, United
                        States Department of Justice,
                        Washington, D.C.

    UPON DUE CONSIDERATION of this petition for review of a

decision of the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is DENIED.

    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, 

, 517 (2d Cir. 2006) (quoting INS

v. Doherty, 

, 322-23 (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

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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)(1)(utilizing “must”

rather than “may”); see also Photopaint Techs., LLC v.

Smartlens Corp., 

, 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, 

, 638-39 (5th Cir.

2007).

    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).

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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