XIU GUI LIU v. GONZALES (2007)

SUMMARY ORDER

Xiu Gui Liu, a citizen of China, seeks review of a February 22, 2007 order of the BIA affirming the December 7, 2004 decision of Immigration Judge (“IJ”) Paul A. DeFonzo denying his motion to reopen his removal proceedings.  In re Xiu Gui Liu, No. AXX XX6 728 (B.I.A. Feb. 22, 2007), aff'g No. A XX XX6 728 (Immig. Ct. N.Y. City Dec. 7, 2004).  We assume the parties' familiarity with the underlying facts and procedural history of the case.

We review the denial of a motion to reopen for abuse of discretion.  See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam).  “An abuse of discretion may be found in those circumstances where the decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements;  that is to say, where the Board has acted in an arbitrary or capricious manner.”  Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 93 (2d Cir.2001) (citations omitted).

 As a preliminary matter, to the extent that Liu attempts to reargue the merits of the underlying order of removal, that decision is not before this Court.  Only the BIA's February 2007 decision denying the motion to re-open is before us.  That is the only decision from which a petition for review was timely filed.  See 8 U.S.C. § 1252(b)(1).

 The IJ properly denied Liu's motion to reopen because he failed to state “the new facts that [would] be proven at a hearing ․ if the motion [were] granted.”  8 U.S.C. § 1229a(c)(7)(B).  As the IJ properly noted, Liu simply restated in his motion the claim he originally set forth in the application for relief that he withdrew.  Additionally, the only evidence that Liu submitted to support his motion, his marriage certificate, is not new evidence because it predates his hearing on the merits.  See id.  Thus, even construing broadly Liu's pro se submissions, we find no reason to disturb the BIA's February 2007 order.

For the foregoing reasons, the petition for review is DENIED.  Having completed our review, the petitioner's pending motion for a stay of removal in this petition is DISMISSED as moot.