12-4098
Zhang-Zhang v. Holder
BIA
A088 792 617
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 18th day of November, two thousand thirteen.
PRESENT:
JON O. NEWMAN,
JOSÉ A. CABRANES,
PETER W. HALL,
Circuit Judges.
_____________________________________
LAN ZHANG-ZHANG,
Petitioner,
v. 12-4098
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Lee Ratner, New York, New York
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Erica B. Miles,
Senior Litigation Counsel; Jesse D.
Lorenz, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Lan Zhang-Zhang, a native and citizen of
China, seeks review of a September 28, 2012, decision of the
BIA denying her motion to reopen removal proceedings. In re
Lan Zhang-Zhang, No. A088 792 617 (B.I.A. Sept. 28, 2012).
We assume the parties’ familiarity with the underlying facts
and procedural history in this case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
(2d Cir. 2006) (per curiam). The agency may properly deny a
motion to reopen where the movant fails to establish a prima
facie case for the underlying substantive relief sought.
See INS v. Abudu, 485 U.S. 94, 104-05 (1988).
In this case, the BIA did not abuse its discretion in
denying Zhang-Zhang’s motion to reopen for failure to make
out a prima facie case. See Jian Hui Shao v. Mukasey, 546
F.3d 138, 168 (2d Cir. 2008) (recognizing that an alien’s
“ability to secure reopening depends on a demonstration of
prima facie eligibility for [relief], which means she must
show a ‘realistic chance’ that she will be able to obtain
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such relief”) (citations omitted). Zhang-Zhang alleged that
the Chinese authorities had renewed awareness of her
practice of Falun Gong after her participation in a May 2012
demonstration in the United States, and in support of her
motion to reopen, she submitted, as pertinent: letters from
her sister and husband regarding her initial claim, a letter
from her father stating that the authorities had come to his
house looking for Zhang-Zhang, a statement from the
petitioner, the 2007 Department of State Profile on China,
and a village committee notice threatening arrest and
punishment.
The BIA reasonably declined to consider the letters
from Zhang-Zhang’s sister and husband because they did not
address the authorities’ recent interest in her Falun Gong
activities, and could have been proffered at the time of her
hearing before the IJ. See 8 C.F.R. § 1003.2(c)(1)
(providing that reopening “shall not be granted unless. . .
. evidence. . . . was not available and could not have been
discovered or presented at the former hearing. . . .”).
Moreover, the BIA reasonably gave limited weight to
Zhang-Zhang’s affidavit and the letter from her father, as
both documents were prepared by persons who are interested
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parties and for purposes of litigation. See Matter of H-L-
H- & Z-Y-Z-, 25 I&N Dec. 209, 214-215 (BIA 2010), overruled
in part on other grounds by Hui Lin Huang v. Holder, 677
F.3d 130 (2d Cir. 2012).
The BIA also did not abuse its discretion in giving
limited weight to Zhang-Zhang’s village committee notice,
since it does not evince reliability. See Xiao Ji Chen v.
U.S. Dep’t of Justice, 471 F.3d 315 (2d Cir. 2006) (noting
the allocation of evidentiary weight is within the
discretion of the IJ or BIA). The BIA gave limited weight
to the notice because: (1) it was not authenticated pursuant
to 8 C.F.R. § 1287.6 or in any other manner; (2) the author
is not identified and the letter is unsigned; (3) the 2007
Department of State Profile suggests that documentation from
Fujian Province is subject to widespread fabrication; and
(4) the letter contains only generalized statements. Zhang-
Zhang correctly argues that it is inappropriate for the BIA
to discount the notice merely because it was not
authenticated pursuant to 8 C.F.R. § 1287.6, particularly
where she attempted to demonstrate its reliability by
providing a chain of custody for the letter. See Shunfu Li
v. Mukasey, 529 F.3d 141, 149 (2d Cir. 2008) (stating that
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the agency may not dismiss evidence “merely on an
applicant’s failure to authenticate it pursuant to [8 C.F.R.
§ 1287.6]” (internal quotations and citation omitted)); see
also Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 400
(2d Cir. 2005). However, as noted above, the BIA did not
discount the notice solely for lack of authentication
pursuant to the regulations. Because this document was
unreliable and was the only independent evidence to support
her claim, the agency similarly did not abuse its discretion
by denying Zhang-Zhang’s motion to reopen. See Abudu, 485
U.S. at 104-05.
For the foregoing reasons, the petition for review is
DENIED. As we have 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 DISMISSED 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 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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