BAO HUA XIAO v. MUKASEY (2008)

SUMMARY ORDER

Bao Hua Xiao, a native and citizen of the People's Republic of China, seeks review of a February 21, 2008 order of the BIA denying his motion to reopen his exclusion proceedings.  In re Bao Hua Xiao, No. AXXX XX2 364 (B.I.A. Feb. 21, 2008).  We assume the parties' familiarity with the underlying facts and procedural history of the case.

We ordinarily review the BIA's denial of a motion to reopen for abuse of discretion.  See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam).  Here, however, Xiao's brief, prepared by counsel Andre Sobolevsky, is of such poor quality that it waives any challenge to the BIA decision under review.  The brief Sobolevsky submitted, inter alia:  (1) refers to the Petitioner, Bao Hua Xiao, as Chen Xin Lin;  (2) repeatedly implies that the petition is a challenge to the BIA's affirmance of an IJ's decision rather than the BIA's denial of a motion to reopen;  (3) refers to the submission of documentary evidence although Xiao submitted no evidence;  and (4) argues that the IJ failed to consider evidence showing the widespread torture of members of house churches where Xiao never applied for CAT relief before the IJ and never claimed to be a member of a house church.  Even the portions of the brief that are arguably responsive to the actual decision under review refer to non-existent evidence.  Under such circumstances, we deem waived any challenge to the BIA's denial of Xiao's motion to reopen.  See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005).  Attorney Sobolevsky is warned that further briefing of this quality will result in sanctions.  We refer this matter to the Court's Grievance Panel for investigation.

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.