11-1978-ag 

Zhang v. Holder

BIA

A097 966 034

A070 902 978

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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 4th 4 day of April, two thousand twelve.

5

6 PRESENT:

7 ROBERT D. SACK,

8 RICHARD C. WESLEY,

9 GERARD E. LYNCH,

10 Circuit Judges.

11 _____________________________________

12

13 CHU DUAN ZHANG, XIN TAN YU,

14 Petitioners, 

15

16 v. 11-1978-ag

17 NAC

18

19 ERIC H. HOLDER, JR., UNITED STATES

20 ATTORNEY GENERAL,

21 Respondent.

22 _____________________________________

23

24 FOR PETITIONER: Scott E. Bratton, New York, New

25 York.

26

27 FOR RESPONDENT: Tony West, Assistant Attorney

28 General; Richard M. Evans, Assistant

29 Director; Andrew Oliveira, Trial
2

1 Attorney, Civil Division, Office of

2 Immigration Litigation, U.S.

3 Department of Justice, Washington,

4 D.C.

5

6 UPON DUE CONSIDERATION of this petition for review of a

7 decision of the Board of Immigration Appeals (“BIA”), it is

8 hereby ORDERED, ADJUDGED, AND DECREED that the petition for

9 review is DENIED.

10 Petitioners Chu Duan Zhang and Xin Tan Yu (“Zhang”),

11 natives and citizens of the People’s Republic of China, seek

12 review of the April 26, 2011, order of the BIA denying their

13 motion to reopen. In re Chu Duan Zhang, Xin Tan Yu, Nos.

14 A097 966 034/A070 902 978 (B.I.A. Apr. 26, 2011). We assume

15 the parties’ familiarity with the underlying facts and

16 procedural history of the case.

17 We review the BIA’s denial of a motion to reopen for

18 abuse of discretion. Kaur v. BIA, 413 F.3d 232, 233 (2d

19 Cir. 2005) (per curiam). “A motion to reopen proceedings

20 shall not be granted unless it appears to the Board that

21 evidence sought to be offered is material and was not

22 available and could not have been discovered or presented at

23 the former hearing.” 8 C.F.R. § 1003.2(c)(1) (2005); see

24 also 8. U.S.C. § 1229a(c)(7). Failure to offer such

25 evidence is, therefore, a proper ground on which the BIA may
3

1 deny a motion to reopen, as is the movant’s failure to

2 establish a prima facie case for the underlying substantive

3 relief sought. See INS v. Abudu, 485 U.S. 94, 104-05

4 (1988). 

5 In support of her claim that she established a prima

6 facie case, Zhang argues that the BIA erred in declining to

7 afford probative weight to a village committee notice and

8 affidavit from her mother allegedly showing that Chinese

9 officials are aware of Zhang’s Falun Gong practice. She

10 avers that because she was found credible in her underlying

11 proceedings, and because the village committee notice she

12 submitted was not obtained in preparation for her

13 proceedings but when Chinese officials came to her mother’s

14 house, her evidence should have been credited. These

15 arguments are unavailing. 

16 The BIA’s rejection of the village committee notice was

17 not in error because the notice was not authenticated “in

18 any manner.” See Shunfu Li v. Mukasey, 529 F.3d 141, 149-50

19 (2d Cir. 2008). The BIA’s decision had nothing to do with

20 its finding that Zhang was credible, and finding Zhang

21 credible but giving the notice limited probative value are

22 not mutually exclusive, which makes Zhang’s attempts to
4

1 distinguish her case from Qin Wen Zheng v. Gonzales, 500

2 F.3d 143 (2d Cir. 2007) beside the point. Furthermore,

3 Zhang’s argument that the notice she submitted was unlike

4 that found to be properly afforded minimal weight in Matter

5 of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209 (BIA 2010) is not

6 persuasive because the evidentiary concerns associated with

7 an unsigned and unauthenticated notice are not obviated by

8 the notice’s contemporaneity. See Shunfu Li, 529 F.3d at

9 149-50; see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471

10 F.3d 315, 342 (2d Cir. 2006). We afford considerable

11 flexibility to the BIA to determine how unauthenticated

12 documents can impact and alien’s claim and find no abuse of

13 the flexibility and discretion here. We also find Zhang’s

14 challenge to the BIA’s decision to afford her mother’s

15 affidavit minimal weight similarly unpersuasive. See Li Hua

16 Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 104 (2d Cir.

17 2006). 

18 Moreover, none of the additional evidence Zhang

19 submitted, including photographs of herself and her husband

20 practicing Falun Gong and engaging in a Falun Gong

21 demonstration, the 2007 Department of State profile on

22 China, and various news reports of China’s treatment of
5

1 Falun Gong practitioners established the Chinese

2 government’s awareness of her practice of Falun Gong. See

3 Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008);

4 Jian Hui Shao v. Mukasey, 546 F.3d 138, 162 (2d Cir. 2008). 

5 For the foregoing reasons, the petition for review is

6 DENIED. 

7 FOR THE COURT: 

8 Catherine O'Hagan Wolfe, Clerk

9

10