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

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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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