Li You CAO, Petitioner, v. Alberto R. GONZALES, Respondent, 157 F. App'x 425

SUMMARY ORDER Li You Cao, through counsel, petitions for review of the BIA decision denying his motion to reopen his immigration proceedings. We assume the parties’ familiarity with the underlying facts and procedural history of the ease. This Court reviews 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). An abuse of discretion will be found “in those circumstances where the [BIA]’s decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only

summary conclusions or statements; that is to say, where the [BIA] has acted in an arbitrary or eapricious manner.” Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (internal citations omitted). The evidence that Cao submitted in support of his motion to reopen was not material because it did not rebut the adverse credibility finding that provided the basis for the IJ’s denial of Cao’s underlying asylum application. See Kaur, 413 F.3d at 234.

Further, Cao failed to demonstrate the materiality of the evidence or how it “was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2. Accordingly, the BIA did not abuse its discretion in concluding that Cao did not offer evidence sufficient to warrant reopening his immigration proceedings. For these reasons, the petition for review is DENIED. Having 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 DENIED 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(d)(1).