11-1276-ag
Lin v. Holder
BIA
A088 377 985
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 6th day of June, two thousand thirteen.
PRESENT:
JOHN M. WALKER, JR.,
REENA RAGGI,
SUSAN L. CARNEY,
Circuit Judges.
_________________________________________
WEN LIN,
Petitioner,
v. 11-1276-ag
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; Anthony W. Norwood, Senior
Litigation Counsel; Siu P. Wong,
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 Wen Lin, a native and citizen of China,
seeks review of the March 10, 2011 Order of the BIA denying
his motion to reopen. In re Wen Lin, No. A088 377 985
(B.I.A. Mar. 10, 2011). We assume the parties’ familiarity
with the underlying facts, the arguments asserted on appeal,
and the procedural history of the 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). Lin’s motion to reopen was timely, see 8
U.S.C. § 1229a(c)(7)(A),(C)(i), but, because he failed to
establish his prima facie eligibility for asylum,
withholding of removal, or protection under the Convention
Against Torture, the BIA did not abuse its discretion in
denying his motion. See INS v. Abudu, 485 U.S. 94, 104
(1988). To establish prima facie eligibility for relief, a
movant must demonstrate “a realistic chance that he will be
able to establish eligibility” during reopened proceedings.
Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005)
(internal quotation marks omitted).
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In denying Lin’s motion, the BIA reasonably accorded
his affidavit diminished weight, as the affidavit does not
explain how Lin’s church attendance in the United States
became subject to threats by local authorities in China, nor
does the affidavit describe how Lin obtained the “warning
notice.”1 See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
F.3d 315, 342 (2d Cir. 2006) (the weight afforded to the
applicant’s evidence lies largely within the discretion of
the agency).
The BIA also reasonably deemed the “warning notice”
unreliable, as it was not authenticated or signed, and
alleged only that Lin attended churches in the United
States, without referencing his or his family members’
attendance at underground churches in China. See id.; see
also Shunfu Li v. Mukasey, 529 F.3d 141, 149 (2d Cir. 2008)
(affording agency “considerable flexibility in determining
the authenticity of [submitted] documents from the totality
1
In his brief on appeal, Lin asserts that the “warning notice” was
delivered to his family in China in April 2010. Pet.’s Brief at 5. But Lin
has not submitted an affidavit from any of his family members attesting to
this delivery, nor has he explained how he himself received the notice.
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of the evidence”); Qin Wen Zheng v. Gonzales, 500 F.3d 143,
148-49(2d Cir. 2007).
Further, the BIA evaluated the content of the “warning
notice” and reasonably concluded that, because it did not
specify what, if any, penalties Lin would face as a result
of his religious practices, the notice did not demonstrate
that he would face harm rising to the level of persecution
upon his return to China. See Jian Hui Shao v. Mukasey, 546
F.3d 138, 172 (2d Cir. 2008); see also Paul v. Gonzales, 444
F.3d 148, 156 (2d Cir. 2006) (observing that where objective
likelihood of persecution is not shown, claims for
withholding of removal and CAT relief resting on same
factual predicate fail as well). In addition, as the BIA
observed, that Lin’s family members—assertedly, practicing
Christians who attend underground churches in China—have
not suffered persecution or arrest, further diminishes Lin’s
claim that, upon return to China, he will likely be
persecuted on the basis of his Christian religious
practices. See Melgar de Torres v. Reno, 191 F.3d 307, 313
(2d Cir. 1999).
Finally, Lin’s argument that the BIA failed to assess
the 2009 State Department Report on China is misguided, as
4
the BIA explicitly referred to the report in its decision.
See Jian Hui Shao, 546 F.3d at 169; see also Xiao Ji Chen,
471 F.3d at 336-37 n.17 (“[W]e presume that [the agency] has
taken into account all of the evidence before [it], unless
the record compellingly suggests otherwise.”).
For the foregoing reasons, the petition for review is
DENIED. Since we have completed our review, the pending
motion for a stay of removal in this petition is DISMISSED
as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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