10-5166-ag
Chen v. Holder
BIA
Morace, IJ
A089 254 096
A089 254 097
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 6th day of April, two thousand twelve.
PRESENT:
JOHN M. WALKER, JR.,
DEBRA ANN LIVINGSTON,
GERARD E. LYNCH,
Circuit Judges.
_________________________________________
WENQUN CHEN, XINGXIANG CHEN,
Petitioners,
10-5166-ag
v. NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_________________________________________
FOR PETITIONER: Theodore N. Cox, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Ada E. Bosque, Senior
Litigation Counsel; Matthew A.
Spurlock, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of the 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.
Petitioners Wenqun Chen and Xingxiang Chen (hereafter
“Chens”), natives and citizens of the People’s Republic of
China, seek review of a November 30, 2010, order of the BIA
denying their motion to reopen.1 In re Wenqun Chen,
Xingxiang Chen, Nos. A089-254-096, A089-254-097 (B.I.A. Nov.
30, 2010). 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. Kaur v. BIA, 413 F.3d 232, 233 (2d
Cir. 2005) (per curiam). “A motion to reopen proceedings
shall not be granted unless it appears to the Board that
evidence sought to be offered is material and was not
available and could not have been discovered or presented at
the former hearing. . . .” 8 C.F.R. § 1003.2(c)(1); see
also 8 U.S.C. § 1229a(c)(7); Norani v. Gonzales, 451 F.3d
292, 294 & n.3 (2d Cir. 2006). Failure to offer such
1
The Chens’ petition to this Court for review of the
BIA’s July 2, 2010, decision remains pending. See Chen v.
Holder, No. 10-2918-ag.
2
evidence is a proper ground on which the BIA may deny a
motion to reopen, as is a movant’s failure to establish a
prima facie case for the underlying substantive relief
sought. See INS v. Abudu, 485 U.S. 94, 104-05 (1988).
In denying the Chens’ motion to reopen, the BIA
reasonably concluded that they had failed to corroborate
their claim that they would be persecuted for practicing
Christianity if they were returned to China. See Diallo v.
INS, 232 F.3d 279, 288 (2d Cir. 2000); In re S-M-J-, 21 I.&
N. Dec. 722, 724 (BIA 1997). The BIA found that there was
no evidence that anyone in China was even aware of the
Chens’ religious devotion, “much less that any such person
has the interest, means, and ability to cause them harm as a
result.”
The BIA also found that while Ms. Chen and her mother
claimed to have practiced Christianity for years, they had
provided no evidence beyond their own affidavits of their
decades-long religious devotion. For example, the BIA
observed that Ms. Chen’s “family’s household registration
booklet has a blank space for both herself and her mother
with regard to their reported ‘religious belief,’” and that
Ms. Chen’s “first asylum application, completed in 2008,
also states ‘none’ when asked to identify her religion.”
3
Similarly, the BIA noted that although objective
evidence such as police records, fines, or receipts ought to
have been available to corroborate Ms. Chen’s and her
mother’s claims of past religious persecution, the
petitioners had failed to offer or explain the absence of
“such basic corroborative evidence.” See 8 U.S.C.
§ 1252(b)(4)(B) (a reviewing court must defer to the
agency’s finding that corroboration is reasonably
available).
The BIA did not abuse its discretion in concluding that
the Chens failed to demonstrate prima facie eligibility for
relief because they had not shown evidence of their own past
persecution on account of their Christianity, or evidence
that Chinese authorities were likely to become aware in the
future of the Chens’ religious activities. See Hongsheng
Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008) (“Put
simply, to establish a well-founded fear of persecution in
the absence of any evidence of past persecution, an alien
must make some showing that authorities in his country of
nationality are either aware of his activities or likely to
become aware of his activities.”).
4
We have considered the Chens’ remaining arguments and
find them to be without merit. For the foregoing reasons,
the Chens’ petition for review of the BIA’s November 30,
2010, decision is DENIED. As we have completed our review,
the Chens’ pending motion for a stay of removal in these
petitions is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
5