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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 4 th** **day of April, two thousand twelve.** 4 5 **PRESENT:** 6 **ROBERT D. SACK,** 7 **RICHARD C. WESLEY,** 8 **GERARD E. LYNCH,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **CHU DUAN ZHANG, XIN TAN YU,** 13 Petitioner**s,** 14 15 **v. 11-1978-ag** 16 **NAC** 17 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent**.** 21

**_____________________________________** 22 23 **FOR PETITIONER: Scott E. Bratton, New York, New** 24 **York.** 25 26 **FOR RESPONDENT: Tony West, Assistant Attorney** 27 **General; Richard M. Evans, Assistant** 28 **Director; Andrew Oliveira, Trial** 292 **Attorney, Civil Division, Office of** 1 **Immigration Litigation, U.S.** 2 **Department of Justice, Washington,** 3 **D.C.** 4 5 UPON DUE CONSIDERATION of this petition for review of a 6 decision of the Board of Immigration Appeals (“BIA”), it is 7 hereby ORDERED, ADJUDGED, AND DECREED that the petition for 8 review is DENIED. 9 Petitioners Chu Duan Zhang and Xin Tan Yu (“Zhang”), 10 natives and citizens of the People’s Republic of China, seek 11 review of the April 26, 2011, order of the BIA denying their 12 motion to reopen. In re Chu Duan Zhang, Xin Tan Yu , Nos. 13 A097 966 034/A070 902 978 (B.I.A. Apr. 26, 2011). We assume 14 the parties’ familiarity with the underlying facts and 15 procedural history of the case. 16 We review the BIA’s denial of a motion to reopen for 17 abuse of discretion. Kaur v. BIA, 413 F.3d 232, 233 (2d 18 Cir. 2005) (per curiam). “A motion to reopen proceedings 19 shall not be granted unless it appears to the Board that 20 evidence sought to be offered is material and was not 21 available and could not have been discovered or presented at 22 the former hearing.” 8 C.F.R. § 1003.2(c)(1) (2005); see 23 also8. U.S.C. § 1229a(c)(7). Failure to offer such 24 evidence is, therefore, a proper ground on which the BIA may 253 deny a motion to reopen, as is the movant’s failure to 1 establish a prima faciecase for the underlying substantive 2 relief sought. See INS v. Abudu , 485 U.S. 94, 104-05 3 (1988). 4 In support of her claim that she established a prima 5 facie case, Zhang argues that the BIA erred in declining to 6 afford probative weight to a village committee notice and 7 affidavit from her mother allegedly showing that Chinese 8 officials are aware of Zhang’s Falun Gong practice. She 9 avers that because she was found credible in her underlying 10 proceedings, and because the village committee notice she 11 submitted was not obtained in preparation for her 12 proceedings but when Chinese officials came to her mother’s 13 house, her evidence should have been credited. These 14 arguments are unavailing. 15 The BIA’s rejection of the village committee notice was 16 not in error because the notice was not authenticated “in 17 any manner.” See Shunfu Li v. Mukasey, 529 F.3d 141, 149-50 18 (2d Cir. 2008). The BIA’s decision had nothing to do with 19 its finding that Zhang was credible, and finding Zhang 20 credible but giving the notice limited probative value are 21 not mutually exclusive, which makes Zhang’s attempts to 224 distinguish her case from Qin Wen Zheng v. Gonzales , 500 1 F.3d 143 (2d Cir. 2007) beside the point. Furthermore, 2 Zhang’s argument that the notice she submitted was unlike 3 that found to be properly afforded minimal weight in Matter 4 of H-L-H- & Z-Y-Z- , 25 I. & N. Dec. 209 (BIA 2010) is not 5 persuasive because the evidentiary concerns associated with 6 an unsigned and unauthenticated notice are not obviated by 7 the notice’s contemporaneity. See Shunfu Li , 529 F.3d at 8
149-50; see also Xiao Ji Chen v. U.S. Dep’t of Justice , 471 9 F.3d 315, 342 (2d Cir. 2006). We afford considerable 10 flexibility to the BIA to determine how unauthenticated 11 documents can impact and alien’s claim and find no abuse of 12 the flexibility and discretion here. We also find Zhang’s 13 challenge to the BIA’s decision to afford her mother’s 14 affidavit minimal weight similarly unpersuasive. See Li Hua 15 Lin v. U.S. Dep’t of Justice , 453 F.3d 99, 104 (2d Cir. 16 2006). 17 Moreover, none of the additional evidence Zhang 18 submitted, including photographs of herself and her husband 19 practicing Falun Gong and engaging in a Falun Gong 20 demonstration, the 2007 Department of State profile on 21 China, and various news reports of China’s treatment of 225 Falun Gong practitioners established the Chinese 1 government’s awareness of her practice of Falun Gong. See 2 Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008); 3 Jian Hui Shao v. Mukasey, 546 F.3d 138, 162 (2d Cir. 2008). 4 For the foregoing reasons, the petition for review is 5

DENIED. 6
FOR THE COURT: 7 Catherine O'Hagan Wolfe, Clerk 8 9 10