Li Qiang Zhu v. United States Department of Justice

10-7-ag
Zhu v. U.S. Department of Justice
BIA
A099 928 384
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.

1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 7th day of February, two thousand eleven.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 DEBRA ANN LIVINGSTON,
10 DENNY CHIN,
11 Circuit Judges.
12 _______________________________________
13
14 LI QIANG ZHU,
15 Petitioner,
16
17 v. 10-7-ag
18 NAC
19 UNITED STATES DEPARTMENT OF JUSTICE,
20 ERIC H. HOLDER, JR., U.S. ATTORNEY
21 GENERAL, IMMIGRATION & NATURALIZATION
22 SERVICE,
23 Respondents.
24 ______________________________________
25
26 FOR PETITIONER: Li Qiang Zhu (pro se), Brooklyn, New
27 York.
28
29 FOR RESPONDENTS: Tony West, Assistant Attorney
30 General; Christopher C. Fuller,
31 Senior Litigation Counsel; Charles
32 S. Greene, III, Civil Division,
 1 Office of Immigration Litigation,
2 United States Department of Justice,
3 Washington D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a

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

7 ORDERED, ADJUDGED, AND DECREED that the petition for review

8 is DENIED.

9 Petitioner Li Qiang Zhu, a native and citizen of China,

10 seeks review of the December 11, 2009, order of the BIA

11 denying his motion to reopen his removal proceedings. In re

12 Li Qiang Zhu, No. A099 928 384 (B.I.A. Dec. 11, 2009). We

13 assume the parties’ familiarity with the underlying facts

14 and procedural history in this case.

15 Zhu did not file a timely petition for review of the

16 underlying order denying his eligibility for relief; our

17 review is therefore limited to the BIA’s decision not to

18 reopen Zhu’s removal proceedings. See Alam v. Gonzales, 438

19 F.3d 184, 186 (2d Cir. 2006) (per curiam); Kaur v. Bd. of

20 Immigration Appeals, 413 F.3d 232, 233 (2d Cir. 2005) (per

21 curiam). We review the BIA’s denial of a motion to reopen

22 for abuse of discretion. See Ali v. Gonzales, 448 F.3d 515,

23 517 (2d Cir. 2006)(per curiam).

24 The BIA did not abuse its discretion in denying Zhu’s

25 motion to reopen based on his failure to provide evidence

2
 1 establishing his prima facie eligibility for relief. See

2 I.N.S. v. Abudu, 485 U.S. 94, 104-05 (1988) (holding that a

3 movant’s failure to establish a prima facie case for the

4 underlying substantive relief is a proper ground for the BIA

5 to deny a motion to reopen); Jian Hui Shao v. Mukasey, 546

6 F.3d 138, 168-69 (2d Cir. 2008). While Zhu stated that he

7 began practicing Falun Gong in the United States after the

8 immigration judge denied his original asylum application,

9 and that his wife was arrested in China for practicing Falun

10 Gong, the BIA reasonably found that Zhu offered insufficient

11 evidence of his claimed fear of future persecution, or of

12 his prima facie eligibility for relief. Zhu provided no

13 evidence of his wife’s arrest or practice of Falun Gong, and

14 the evidence concerning Zhu’s practice of Falun Gong in the

15 United States was an affidavit that had multiple

16 inconsistencies and did not indicate that Chinese officials

17 were aware or would become aware of Zhu’s practice of Falun

18 Gong–-let alone that they would persecute him as a result.

19 See Jian Hui Shao, 546 F.3d at 168 (noting that in order to

20 establish prima facie eligibility for relief in a motion to

21 reopen, petitioner must “show a ‘realistic chance’” of

22 obtaining relief by “demonstrating that the proffered new

23 evidence would likely alter the result in her case”); Jian

3
 1 Xing Huang v. I.N.S., 421 F.3d 125, 129 (2d Cir. 2005)

2 (holding that, absent “solid support in the record” for the

3 petitioner’s assertion that he would be subjected to forced

4 sterilization, his fear was “speculative at best”)(per

5 curiam); Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d

6 Cir. 2005)(per curiam) (holding that an applicant who has

7 not provided any evidence of past persecution and seeks to

8 establish a well-founded fear of persecution based on his

9 political activities in the United States, “must make some

10 showing that authorities in his country of nationality are

11 either aware of his activities or likely to become aware of

12 his activities”).

13 For the foregoing reasons, the petition for review is

14 DENIED. As we have completed our review, any pending motion

15 for a stay of removal in this petition is DISMISSED as moot.

16 Any pending request for oral argument in this petition is

17 DENIED in accordance with Federal Rule of Appellate

18 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21

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