11-5322 Chen v. Holder BIA A094 921 504 

### 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 Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 25 th** **day of March, two thousand thirteen.** 4 5 **PRESENT:** 6 **DEBRA ANN LIVINGSTON,** 7 **DENNY CHIN,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **YAN HUA CHEN,** 13 Petitioner**,** 14 15 **v. 11-5322** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_______________________________________** 21 22 **FOR PETITIONER: Yan Hua Chen, New York, N.Y.** 23 24 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 25 **Attorney General; Mary Jane Candaux,** 26 **Assistant Director; Aimee J.** 27 **Carmichael, Trial Attorney, Office** 28 **of Immigration Litigation, United** 29 **States Department of Justice,** 30 **Washington, D.C.** 31UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Petitioner Yan Hua Chen, a native and citizen of China, 5 seeks review of a November 22, 2011, decision of the BIA 6 denying her motion to reopen her removal proceedings. In re 7 Yan Hua Chen, No. A094 921 504 (B.I.A. Nov. 22, 2011). We 8 assume the parties’ familiarity with the underlying facts 9 and procedural history in this case. 10 We review the BIA’s denial of a motion to reopen for 11 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 12 (2d Cir. 2006) (per curiam). The agency may properly deny a 13 motion to reopen where the movant fails to establish a prima 14 facie case for the underlying substantive relief sought. 15 See INS v. Abudu , 485 U.S. 94, 104-05 (1988). 16 In her motion filed with the BIA, Chen timely sought 17 reopening on the basis of her conversion to Christianity in 18 the United States. However, the BIA reasonably determined 19 that Chen failed to demonstrate her prima facie eligibility 20 for asylum, withholding of removal, and relief under the 21 Convention Against Torture. See Jian Hui Shao v. Mukasey, 22 546 F.3d 138, 168 (2d Cir. 2008) (recognizing that an 23 2alien’s “ability to secure reopening depends on a 1 demonstration of prima facie eligibility for [relief], which 2 means she must show a ‘realistic chance’ that she will be 3 able to obtain such relief” (citations omitted)). 4 Contrary to Chen’s assertion, the BIA did not abuse its 5 discretion in finding that her country conditions evidence – 6 describing treatment of underground church members in 7 Beijing – did not support her claimed fear of persecution 8 and torture in her home province of Fujian, in light of 9 local variations in the treatment of Christians in China. 10 See Jian Hui Shao , 546 F.3d at 142-43, 149 (finding no error 11 in the BIA’s evidentiary framework requiring an applicant to 12 demonstrate that enforcement of the family planning policy 13 is carried out in his local area in a manner that would give 14 rise to a well-founded fear of persecution because of local 15 variations in the enforcement of that policy). 16 The BIA also did not err in its consideration of Chen’s 17 individualized evidence, which it reasonably concluded was 18 speculative and insufficient to establish her prima facie 19 eligibility for relief. See Xiao Ji Chen v. U.S. Dep’t of 20 Justice , 471 F.3d 315, 342 (2d Cir. 2006). As the BIA 21 reasonably determined, Chen’s individualized evidence was 22

3insufficient because: (1) her affidavit was vague regarding 1 her practice of Christianity and was not based on personal 2 knowledge regarding the treatment of Christians in China; 3 (2) the affidavit from Chen’s roommate, who was not a fellow 4 congregate, merely recounted what Chen had told him about 5 her church activities; and (3) Chen’s pastors’ letter was 6 unsworn and only attested to her church attendance for a 7 period of less than two months. See id.;Jian Xing Huang v. 8
U.S. INS, 421 F.3d 125, 128-29 (2d Cir. 2005) (holding that 9 absent “solid support in the record” a fear of persecution 10 is “speculative at best”). Chen’s suggestion that the BIA’s 11 consideration of her evidence constituted impermissible 12 fact-finding is misplaced, as we have recognized that the 13 BIA will engage in fact-finding when evaluating evidence 14 submitted in support of reopening. See, e.g. , Jian Hui 15 Shao, 546 F.3d at 168; Li Yong Cao v. Dep’t of Justice , 421 16 F.3d 149, 151, 156 (2d Cir. 2005). 17 Lastly, notwithstanding Chen’s assertion to the 18 contrary, the BIA reasonably noted her failure to present 19 evidence showing that authorities in China were, or would 20 likely become, aware of her religious activities in the 21 United States. See Hongsheng Leng v. Mukasey, 528 F.3d 135, 22 143 (2d Cir. 2008). 23

4For the foregoing reasons, the petition for review is 1 DENIED. As we have completed our review, any stay of 2 removal that the Court previously granted in this petition 3 is VACATED, and any pending motion for a stay of removal in 4 this petition is DENIED as moot. Any pending request for 5 oral argument in this petition is DENIED in accordance with 6 Federal Rule of Appellate Procedure 34(a)(2), and Second 7 Circuit Local Rule 34.1(b). 8
FOR THE COURT: 9 Catherine O’Hagan Wolfe, Clerk 10 11

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