10-5166-ag

Chen v. Holder

BIA

Morace, IJ

A089 254 096

A089 254 097

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 Daniel Patrick Moynihan

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

New York, on the 6th day of April, two thousand twelve.

PRESENT:

JOHN M. WALKER, JR.,

DEBRA ANN LIVINGSTON,

GERARD E. LYNCH,

 Circuit Judges.

_________________________________________

WENQUN CHEN, XINGXIANG CHEN,

Petitioners, 

 10-5166-ag

 v. NAC

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

_________________________________________

 

FOR PETITIONER: Theodore N. Cox, New York, New York.

FOR RESPONDENT: Tony West, Assistant Attorney

General; Ada E. Bosque, Senior

Litigation Counsel; Matthew A.

Spurlock, Trial Attorney, Office of

Immigration Litigation, United

States Department of Justice, 

Washington, D.C.
1 The Chens’ petition to this Court for review of the

BIA’s July 2, 2010, decision remains pending. See Chen v.

Holder, No. 10-2918-ag.

2

UPON DUE CONSIDERATION of the 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. 

Petitioners Wenqun Chen and Xingxiang Chen (hereafter

“Chens”), natives and citizens of the People’s Republic of

China, seek review of a November 30, 2010, order of the BIA

denying their motion to reopen.1 In re Wenqun Chen,

Xingxiang Chen, Nos. A089-254-096, A089-254-097 (B.I.A. Nov.

30, 2010). We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

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

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

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

shall not be granted unless it appears to the Board that

evidence sought to be offered is material and was not

available and could not have been discovered or presented at

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

also 8 U.S.C. § 1229a(c)(7); Norani v. Gonzales, 451 F.3d

292, 294 & n.3 (2d Cir. 2006). Failure to offer such
3

evidence is a proper ground on which the BIA may deny a

motion to reopen, as is a movant’s failure to establish a

prima facie case for the underlying substantive relief

sought. See INS v. Abudu, 485 U.S. 94, 104-05 (1988). 

In denying the Chens’ motion to reopen, the BIA

reasonably concluded that they had failed to corroborate

their claim that they would be persecuted for practicing

Christianity if they were returned to China. See Diallo v.

INS, 232 F.3d 279, 288 (2d Cir. 2000); In re S-M-J-, 21 I.&

N. Dec. 722, 724 (BIA 1997). The BIA found that there was

no evidence that anyone in China was even aware of the

Chens’ religious devotion, “much less that any such person

has the interest, means, and ability to cause them harm as a

result.”

The BIA also found that while Ms. Chen and her mother

claimed to have practiced Christianity for years, they had

provided no evidence beyond their own affidavits of their

decades-long religious devotion. For example, the BIA

observed that Ms. Chen’s “family’s household registration

booklet has a blank space for both herself and her mother

with regard to their reported ‘religious belief,’” and that

Ms. Chen’s “first asylum application, completed in 2008,

also states ‘none’ when asked to identify her religion.”
4

Similarly, the BIA noted that although objective

evidence such as police records, fines, or receipts ought to

have been available to corroborate Ms. Chen’s and her

mother’s claims of past religious persecution, the

petitioners had failed to offer or explain the absence of

“such basic corroborative evidence.” See 8 U.S.C.

§ 1252(b)(4)(B) (a reviewing court must defer to the

agency’s finding that corroboration is reasonably

available).

The BIA did not abuse its discretion in concluding that

the Chens failed to demonstrate prima facie eligibility for

relief because they had not shown evidence of their own past

persecution on account of their Christianity, or evidence

that Chinese authorities were likely to become aware in the

future of the Chens’ religious activities. See Hongsheng

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

simply, to establish a well-founded fear of persecution in

the absence of any evidence of past persecution, an alien

must make some showing that authorities in his country of

nationality are either aware of his activities or likely to

become aware of his activities.”).
5

We have considered the Chens’ remaining arguments and

find them to be without merit. For the foregoing reasons,

the Chens’ petition for review of the BIA’s November 30,

2010, decision is DENIED. As we have completed our review,

the Chens’ pending motion for a stay of removal in these

petitions is DISMISSED as moot.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk