12-4119
Chen v. Holder
BIA
A089 099 436
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 30th day of October, two thousand thirteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 YAN CHEN, AKA YAN ZHEN CHEN,
14 Petitioner,
15
16 v. 12-4119
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Yevgeny Samokhleb, New York, New
24 York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Holly F. Smith,
28 Senior Litigation Counsel; Scott M.
29 Marconda, Trial Attorney, Office of
30 Immigration Litigation, Civil
31 Division, United States Department
32 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Yan Chen, a native and citizen of the
6 People’s Republic of China, seeks review of a September 28,
7 2012, decision of the BIA denying her motion to reopen. In
8 re Yan Chen, No. A089 099 436 (B.I.A. Sep. 28, 2012). We
9 assume the parties’ familiarity with the underlying facts
10 and procedural history in this case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006). It is well established that the BIA may
14 deny an alien’s motion to reopen for failure to demonstrate
15 prima facie eligibility for the underlying relief sought.
16 See INS v. Abudu, 485 U.S. 94, 104-05 (1988). To establish
17 eligibility for asylum, an applicant, like Chen, who does
18 not rely on past persecution must demonstrate an objectively
19 reasonable well-founded fear of future persecution. See
20 8 U.S.C. § 1101(a)(42); Kyaw Zwar Tun v. INS, 445 F.3d 554,
21 564 (2d Cir. 2006); Ramsameachire v. Ashcroft, 357 F.3d 169,
22 178 (2d Cir. 2004). An asylum applicant can demonstrate
2
1 that a fear of future persecution is objectively reasonable
2 by either: (1) offering evidence that “she would be singled
3 out individually for persecution”; or (2) “by proving the
4 existence of a pattern or practice in [] her country of
5 nationality of persecution of a group of persons similarly
6 situated to the applicant.” 8 C.F.R. §§ 1208.13(b)(2),
7 1208.16(b)(2).
8 Chen argues that she established a well-founded fear of
9 future persecution because the Chinese police are aware of
10 her pro-democracy activities in the United States and
11 because Chinese citizens who have engaged in pro-democracy
12 activities in the United States have been persecuted for
13 those activities when they returned to China.
14 First, the BIA did not err in finding that Chen’s
15 evidence, that the police had come looking for her at her
16 family’s home in China, was unreliable and insufficient to
17 meet her burden. The evidence was from interested parties
18 not subject to cross examination who did not have first-hand
19 knowledge of the events, and appeared to have been prepared
20 for the purpose of litigation. See In re H-L-H & Z-Y-Z-, 25
21 I&N Dec. 209, 215 (BIA 2010) (affording diminished weight to
22 unsworn letters from the alien’s friends and family because
3
1 they were from interested witnesses not subject to cross-
2 examination and appeared to be created for the purpose of
3 litigation), remanded on other grounds by Hui Lin Huang v.
4 Holder, 677 F.3d 130 (2d Cir. 2012); see also Xiao Ji Chen
5 v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006)
6 (holding that the weight afforded to the applicant’s
7 evidence lies largely within the discretion of the agency).
8 Furthermore, the BIA reasonably determined that Chen’s
9 evidence purporting to establish a pattern or practice of
10 persecution of similarly situated individuals was
11 insufficient to warrant reopening. First, her evidence that
12 pro-democracy activists in China were persecuted for their
13 anti-government demonstrations was not directly relevant to
14 Chen’s assertion that she would be persecuted for her
15 activities in the United States. See 8 C.F.R.
16 § 1003.2(c)(1) (requiring that a motion to reopen be based
17 on new evidence material to the movant’s eligibility for
18 asylum). Id. at §§ 1208.13(b)(2), 1208.16(b)(2) (providing
19 that, to establish an objective basis for a fear of future
20 persecution, evidence of a pattern or practice of
21 persecution must involve a group of persons “similarly
22 situated to the applicant”). Second, her evidence that two
4
1 individuals were detained for activities outside of China in
2 2002 and 2008 was insufficient to show a nationwide pattern
3 or practice of persecution. See Santoso v. Holder, 580 F.3d
4 110, 112 (2d Cir. 2009) (affirming the agency’s conclusion
5 that record evidence that only showed localized violence was
6 insufficient to establish a pattern or practice of
7 persecution countrywide). Because Chen failed to meet her
8 burden of showing a realistic chance of demonstrating a
9 well-founded fear of persecution, she “necessarily fail[ed]
10 to demonstrate” her higher burdens of proof for withholding
11 of removal and Convention Against Torture (“CAT”)
12 protection. See Lecaj v. Holder, 616 F.3d 111, 119-20 (2d
13 Cir. 2010).
14 Accordingly, the BIA did not abuse its discretion when
15 it denied Chen’s motion to reopen based on her failure to
16 demonstrate her prima facie eligibility for relief. See
17 Jian Hui Shao v. Mukasey, 546 F.3d 138, 168 (2d Cir.
18 2008)(noting that an alien has a “‘heavy burden’ of
19 demonstrating that the proffered new evidence would likely
20 alter the result in her case” (quoting Abudu, 485 U.S. at
21 110)).
22
5
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
6