2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

4-4-2011 

# H ui Z he n g v

. Att y Ge n U S A

P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 10-2783

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w . v i l l a no v a . e du/thir dc ir c uit_2011/15161 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 10

- 2783

___________ HUI ZHENG ,

Petitioner

v. ATTORNEY GENERAL OF THE UNITED STATES

____________________________________ On Petition for Re view of an Order of the Board of Immigration Appeals (A099

- 928

- 034) Immigration Judge: Honorable Margaret R. Reichenberg

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a)

April 1, 2011 Before: FUENTES, VANASKIE and NYGAARD, Circuit Judges

(Opinion filed : April 4, 2011 )

___________ OPINION

___________ PER CURIAM

. Hui Zheng, a native and citizen of China, entered the United States in 2006 without being admitted or paroled . H e applied for asylum, withholding of removal , and C onvention Against Torture (“C AT ”) relief based on a claim that his wife had been forced in 2003 to undergo an abortion in China. Zheng conceded h is removab ility , and2

an I mmigration Judge (“IJ”) rejected his applications for relief from re moval

. On November 9, 2009, the B oard of Immigration Appeals (“B IA ”) affirmed the IJ ‟s decision and dismissed Zheng‟s appeal

. Zheng did not petition for review of the BIA‟s final removal order

. Instead, he filed a “ motion to reconsider and remand

. ” T he BIA construed the filing as a timely motion to reopen and denied it

. It explained that, while Zheng‟s initial claim for relief was predicated on China‟s population control policies, he now claim s that he beg a n practicing Falun Gong in October 2008, and that he fears future harm in China for this

reason . Zheng submitted statements from himself and his sister

- in

- law in support of his

new claim , but the BIA found the statements “notable for their vagueness and lack of relevant detail.” Further, while Zhe ng alleged that he had allowed an unidentified friend of his wife who practiced Falun Gong to hide in their home in China at some unspecified time in the past , the BIA observed that Zheng made no such allegation previously, and he provided no evidence to c orroborate the claim. Moreover, the BIA noted that Zheng failed to submit any evidence, aside from his sister

- in

- law‟s generalized and brief statement, to support his claim that he is a Falun Gong practitioner, and no evidence that anyone in China is awar e of his new found practice or would have the interest and means to cause him harm. Concluding that Zheng failed to show the materiality of his claim, the BIA refused to reopen the case . Zheng timely filed a petition for review in this Court. We have jurisdi c tion under 8 U.S.C. § 1252(a) (1) , limited to a review of the order3

den ying Zheng‟s motion to reopen

. 1 “ As a general rule, motions to reopen are granted only under compelling circumstances. ” Guo v. Ashcroft , 386 F.3d 556, 561 (3d Cir. 2004)

. Our review of the denial of such a motion is for abuse of discretion , “ mindful of the „ broad ‟ deference that the Supreme Court would have us afford.” Lu v. Ashcroft , 259 F.3d 127, 131 (3d Cir. 2001) . We will not disturb the BIA‟s decision unless Zheng shows that it was arbitrary, irrational, or contrary to law

. See Shardar v. Att‟y Gen. , 503 F.3d 308, 311 (3d Cir. 2007)

. An alien pursuing a motion to reopen bears the burden to show that the “ evidence sought to be offered is material and was not available and could not have been discovered
or p resented at the former hearing.” 8 C.F.R. § 1003.2(c)(1). “ The BIA may deny a motion to reopen if it determines that (1) the alien has not established a prima facie case for the relief sought; (2) the alien has not introduced previously unavailable, material evidence; or (3) in the case of discretionary relief (such as asylum), the alien would not be entitled to relief e ven if the motion was granted.” Huang v. Att‟y Gen. , 620 F.3d 372, 389 (3d Cir. 2010) (quotation marks omitted). Zheng argues that the BIA erred in failing to give sufficient weight to his and his sister

- in

- law‟s statements . He contends that the BIA should have accepted the allegations in th ose statements as true for purposes of ruling on whether to reopen, and had the BIA done so, it would have concluded that Zheng state s a prim a facie case of his eligibility for relief from removal

. We dis cern no error .

1 Zheng does not take issue with the BIA‟s decision to construe his filing as a motion to reopen.4

T o establish a prima facie case, an a lien must produce objective evidence showing a reasonable likelihood that he can prove an entitlement to relief from removal

. Shardar , 503 F.3d a t 313. “ For an asylum claim, this means merely showing a realistic chance that the petitioner can at a later time establish that asylum should be granted.” Id. (quot ation marks omitted). It can be assumed from the factual allegations in Zheng and his sister

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- law‟s
statements that Zheng may be able to show that he is now a practitioner of Falun Gong , and that he fears returning to China for that reason

. But t o be eligible for asylum, Zheng

w ould need to establish a “ well

- founded ” fear of persecution , a showing that requires not only evidence of his genuine subjective fear that he would be persecuted, but also an objective showing that “ a reasonable person in the a lien‟ s circumstances would fear persecution if returned to the country in question .” Wong v. Att‟y Gen. , 539 F.3d 225, 232 (3d Cir. 2008) (quotation marks omitted). T he objective standard is satisfied either by showing that t he alien would be individuall y singled out for persecution , or that there is a pattern or practice of persecution on a protected ground of a group of persons similarly situated to the alien

. Id. Zheng‟s motion to re open is not supported by evidence suggesting that he can make an o bjective showing of a well

- founded fear

. As the BIA noted, Zheng does not claim that any one in China is aware of his new ly adopted F a l u n Gong practice or would have the interest and means to single him out for h arm. In addition , while Zheng r efers in his brief to “the Chinese government‟s undisputed record of persecuting Falun Gong practitioners,” Petitioners‟ Br. at 9, evidence of that “undisputed record” i s not attached5

to the motion to reopen, and it cannot be found i n the record before this Court. Other than his and his sister

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- law‟s statements , Zheng attached to the motion to reopen copies of four documents dated in 2003 and 2004 . These documents, which have the appearance of press releases, reflect that they were produced by the “Falun Data
Inf ormation Center” and posted on the “faluninfo.net” website. Zheng points to two
statements from these documents as “objective” evidence that he should fear persecution
in China. First, a document dated April 4, 2003, makes reference to the 2002 State Dep artment Human Rights Report on China . This document notes that the 2002 R eport “highlighted the widespread practice of torturing Falun Gong practitioners in police custody.” JA at 30; Petitioner‟s Br. at 12. Second, Zheng points to a statement in the

sa me April 4, 2003, document that “[s]ystematic, state

- ordered forceful denial of freedom of belief, peaceful assembly and association for Falun Gong practitioners remained severe in China, as the U.S. report indicated.” JA at 32; Petitioners‟ Br. at 12.
T his evidence is in adequate for several reasons

. First, the statements that Zheng cites are purportedly based on a Country Report from 2002. Zheng filed his motion to
reopen seven years later, in 2009

. It is not unreasonable to expect that a n alien seek i ng to
reopen his case based on a f ear of future persecution would support his motion with
current information about conditions in the country at issue

. Second, even if statements from th e outdated 2002 Report are to be considered, Zheng failed to attach a copy of the Report itself to the motion to reopen ; what he presents are mere second

- hand accounts of what might, or might not, be reflected in the 2002 Report

. Third, the statement that there is torture in China of Falun Gong practitioners “ in police cus tody ” is immaterial because6

Zheng has not support ed his motion with any o bjective evidence suggesting that he might be taken into police custody. Fourth, the statement that there is “s ystematic, state

- ordered forceful denial of freedom of belief, peaceful assembly and association for Falun Gong practitioners ” is c onclusory and vague , and it does not indicate that Falun Gong practitioners are subjected to treatment rising to the level of persecution or torture

. We have explained that an alien may demonst rate an objective basis for a well

founded fear “ by documentary or expert evidence about the conditions in a given country

. ” Lusingo v. Gonzales , 420 F.3d 193, 199 (3d Ci r. 2 005)

. Z heng offered the
BIA no such evidence. T he BIA , therefore, d id not act a rbitrarily, irrationally, or contrary to law in concluding that the evidence Zheng submitted was not “material , ” 8 C.F.R. § 100 3.2(c)(1) , and it is clear that Zheng did not establish prima facie eligibility for relief from removal based on his Falun Gong p ractice

. It follows that the BIA did not abuse its discretion in denying the motion to reopen. See Huang , 620 F.3d at 389

- 90

. We have consider ed Zheng‟s remaining arguments but conclude that they are without merit. W e will deny the petition for revie w.