10-1391 (L)
Zhang v. Holder
BIA
Chew, IJ
A090 347 373
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 22nd day of May, two thousand thirteen.
PRESENT:
JON O. NEWMAN,
ROBERT A. KATZMANN,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_______________________________________
WENDENG ZHANG,
Petitioner,
10-1391 (L),
v. 10-4157 (Con)
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Gary J. Yerman, Yerman & Associates,
LLC, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Daniel E. Goldman, Senior
Litigation Counsel; Matthew A.
Spurlock, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of these petitions for review of
decisions of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petitions for
review are DENIED, and the parties’ pending motions are
DENIED as moot.
Wendeng Zhang, a native and citizen of the People’s
Republic of China, seeks review of: (1) a March 29, 2010,
decision of the BIA affirming the January 4, 2008, decision
of an Immigration Judge (“IJ”), denying Zhang’s application
for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”), In re Wendeng Zhang, No.
A090 347 373 (B.I.A. Mar. 29, 2010), aff’g No. A090 347 373
(Immig. Ct. N.Y. City Jan. 4, 2008); and (2) a September 21,
2010, decision of the BIA denying his motion to reopen, In
re Wendeng Zhang, No. A090 347 373 (B.I.A. Sept. 21, 2010).
We assume the parties’ familiarity with the underlying facts
and procedural history in this case.
I. Docket 10-1391 (L) - Final Order of Removal
We have reviewed the IJ’s decision as supplemented by
the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
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Cir. 2005). We review the agency’s factual findings under
the substantial evidence standard, see also Jian Hui Shao v.
Mukasey, 546 F.3d 138, 157-58 (2d Cir. 2008), and questions
of law de novo, Salimatou Bah v. Mukasey, 529 F.3d 99, 110
(2d Cir. 2008).
Absent past persecution, an alien may establish
eligibility for asylum by demonstrating a well-founded fear
of future persecution. See 8 C.F.R. § 1208.13(b)(2). To
establish a well-founded fear of persecution, an applicant
must show that he or she subjectively fears persecution and
that this fear is objectively reasonable. Ramsameachire v.
Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). The agency did
not err in concluding that Zhang failed to demonstrate the
objective reasonableness of his fear of persecution based on
his violation of China’s family planning policy with the
birth of his two U.S. citizen children. See Jian Hui Shao,
546 F.3d at 157-67.
Although, as Zhang argues, the agency may err in
rejecting a document solely based on an alien’s failure to
properly authenticate the document pursuant to 8 C.F.R.
§ 287.6, see Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d
391, 403 (2d Cir. 2005), the agency did not decline to
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credit a family planning notice from his local village
committee based solely on his failure to authenticate the
document, but also reasonably noted that the notice was not
signed or notarized and that the author of the notice was
not identified. Moreover, the BIA alternatively evaluated
the substance of the notice and did not err in concluding
that its indication that Zhang would be subject to the
mandatory sterilization requirement did not demonstrate that
such requirement would be carried out in a manner that would
constitute persecution in light of country conditions
evidence to the contrary. See Jian Hui Shao, 546 F.3d at
165, 172.
Furthermore, contrary to Zhang’s contention, the BIA
did not err in giving diminished weight to letters from
Zhang’s relatives because they were interested witnesses not
subject to cross examination, see Xiao Ji Chen v. U.S. Dep’t
of Justice, 471 F.3d 315, 342; see also Matter of H-L-H- &
Z-Y-Z-, 25 I. & N. Dec. 209, 214-15 & n.5 (BIA 2010)
(affording minimal weight to documents obtained solely for
removal proceedings by interested witnesses not subject to
cross-examination), remanded on other grounds by Hui Lin
Huang v. Holder, 677 F.3d 130 (2d Cir. 2012), and the
letters did not involve individuals similarly situated to
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Zhang, as the targeted individuals were women with children
born in China, and the letters lacked any description as to
the force purportedly used. See Jian Hui Shao, 546 F.3d at
160-61 & n.20 (recognizing the “irony that so many of the
asylum applicants claiming persecution under the one-child
policy are male, while physical burdens associated with
policy compliance – abortions and the vast majority of
sterilizations – are borne by women.”) (internal quotations
marks omitted); see also id. at 172 (finding no error in the
BIA’s determination that it can not infer a reasonable
possibility of forced sterilization from occasional reports
of forced sterilization that lack detail). Similarly, the
agency did not err in summarily considering the oft-cited
statement from Mr. Jin Fun Chen, who claimed to have been
forcibly sterilized in Fujian Province for violating the
family planning policy with the birth of his second child in
Japan, and concluding that the letter lacked any detail and
did not discuss the situation of individuals similarly
situated to Zhang, i.e., a Chinese national with U.S.
citizen children. See Wei Guang Wang v. BIA, 437 F.3d 270,
275 (2d Cir. 2006); see also Jian Hui Shao, 546 F.3d at 152,
155,169.
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As to Zhang’s claimed fear of economic persecution, the
agency did not err in concluding that he failed to submit
evidence demonstrating a reasonable possibility that any
fine for the birth of his children, if imposed, would cause
him severe economic harm because he submitted no evidence of
his personal financial situation. See also Guan Shan Liao
v. U.S. Dep’t. of Justice, 293 F.3d 61, 70 (2d Cir. 2002);
Matter of T-Z-, 24 I. & N. Dec. 163, 170-75 (BIA 2007).
Accordingly, the agency did not err in finding that Zhang
failed to demonstrate a well-founded fear of forced
sterilization or economic persecution under the family
planning policy, and reasonably denied him asylum,
withholding of removal, and CAT relief. See Jian Hui Shao,
546 F.3d at 156-67, 172; Guan Shan Liao, 293 F.3d at 70.
II. Docket 10-4157 (Con) - Denial of Motion to Reopen
We review the BIA’s denial of Zhang’s motion to reopen
for abuse of discretion, the BIA’s evaluation of relevant
country conditions under the substantial evidence standard,
and questions of law de novo. See Jian Hui Shao v. Mukasey,
546 F.3d 138, 168-69 (2d Cir. 2008); Salimatou Bah, 529 F.3d
at 110. As an initial matter, we conclude, contrary to
Zhang’s assertion, that the BIA applied the appropriate
standard by requiring Zhang to demonstrate his prima facie
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eligibility for the underlying relief sought. See Jian Hui
Shao, 546 F.3d at 168-69.
Additionally, the BIA did not err in denying Zhang’s
motion to reopen for failure to submit new, previously
unavailable material evidence demonstrating a realistic
chance that he will face persecution in China on account of
his Christian faith. See INS v. Abudu, 485 U.S. 94, 104-05
(1988) (recognizing that a movant’s failure to present
previously unavailable, material evidence or to establish
his prima facie eligibility for the underlying relief sought
are proper grounds for denying a motion to reopen). As the
BIA noted, evidence of Zhang’s religious faith was
previously available, as was country conditions evidence
indicating that the Chinese government has regulated,
controlled, and targeted religious groups since at least
2005, well before Zhang’s January 2008 hearing. See Norani
v. Gonzales, 451 F.3d 292, 294 (2d Cir. 2006) (recognizing
that in determining if a movant’s evidence was previously
available, the proper inquiry is whether the evidence “could
have been presented at the hearing before the IJ”).
Moreover, the BIA reasonably concluded that the country
conditions evidence did not demonstrate that Zhang had a
realistic chance of being persecuted, as various 2009 U.S.
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Department of State reports in the record indicated that
religious freedom had increased in many areas of China and
that unregistered Christian churches were common throughout
the country with most operating openly. Furthermore, as the
BIA noted, a 2009 ChinaAid report submitted by Zhang
indicated that most incidents of persecution involved
religious leaders, house churches in urban areas, and mega-
churches, and Zhang did not claim that he was a religious
leader, that he was from an urban area, or that he intended
to join a mega-church. See Jian Hui Shao, 546 F.3d at 160-
61, 172-73.
Finally, the BIA did not abuse its discretion in giving
diminished weight to a letter in which Zhang’s cousin
claimed to have been detained and abused in February 2010
for attending a house church, because the letter lacked
detail and was uncorroborated by medical evidence
substantiating his cousin’s alleged injury. See Xiao Ji
Chen, 471 F.3d 315, 342; Jian Hui Shao, 546 F.3d at 155,
171-72. Accordingly, the BIA did not err in denying Zhang’s
motion to reopen for failure to submit new, previously
unavailable evidence demonstrating his prima facie
eligibility for relief. See Abudu, 485 U.S. at 104-05.
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For the foregoing reasons, the petitions for review are
DENIED. As we have completed our review, Zhang’s pending
motions for a stay of removal and the government’s motion to
expedite consideration are 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 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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