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.

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

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 25th 4 day of March, two thousand thirteen.

5

6 PRESENT:

7 DEBRA ANN LIVINGSTON,

8 DENNY CHIN,

9 SUSAN L. CARNEY,

10 Circuit Judges.

11 _____________________________________

12

13 YAN HUA CHEN,

14 Petitioner, 

15

16 v. 11-5322

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONER: Yan Hua Chen, New York, N.Y. 

24

25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

26 Attorney General; Mary Jane Candaux,

27 Assistant Director; Aimee J.

28 Carmichael, Trial Attorney, Office

29 of Immigration Litigation, United

30 States Department of Justice,

31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a

2 Board of Immigration Appeals (“BIA”) decision, it is hereby

3 ORDERED, ADJUDGED, AND DECREED that the petition for review

4 is DENIED.

5 Petitioner Yan Hua Chen, a native and citizen of China,

6 seeks review of a November 22, 2011, decision of the BIA

7 denying her motion to reopen her removal proceedings. In re

8 Yan Hua Chen, No. A094 921 504 (B.I.A. Nov. 22, 2011). We

9 assume the parties’ familiarity with the underlying facts

10 and procedural history in this case.

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

12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517

13 (2d Cir. 2006) (per curiam). The agency may properly deny a

14 motion to reopen where the movant fails to establish a prima

15 facie case for the underlying substantive relief sought.

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

17 In her motion filed with the BIA, Chen timely sought

18 reopening on the basis of her conversion to Christianity in

19 the United States. However, the BIA reasonably determined

20 that Chen failed to demonstrate her prima facie eligibility

21 for asylum, withholding of removal, and relief under the

22 Convention Against Torture. See Jian Hui Shao v. Mukasey,

23 546 F.3d 138, 168 (2d Cir. 2008) (recognizing that an

2
1 alien’s “ability to secure reopening depends on a

2 demonstration of prima facie eligibility for [relief], which

3 means she must show a ‘realistic chance’ that she will be

4 able to obtain such relief” (citations omitted)).

5 Contrary to Chen’s assertion, the BIA did not abuse its

6 discretion in finding that her country conditions evidence –

7 describing treatment of underground church members in

8 Beijing – did not support her claimed fear of persecution

9 and torture in her home province of Fujian, in light of

10 local variations in the treatment of Christians in China. 

11 See Jian Hui Shao, 546 F.3d at 142-43, 149 (finding no error

12 in the BIA’s evidentiary framework requiring an applicant to

13 demonstrate that enforcement of the family planning policy

14 is carried out in his local area in a manner that would give

15 rise to a well-founded fear of persecution because of local

16 variations in the enforcement of that policy). 

17 The BIA also did not err in its consideration of Chen’s

18 individualized evidence, which it reasonably concluded was

19 speculative and insufficient to establish her prima facie

20 eligibility for relief. See Xiao Ji Chen v. U.S. Dep’t of

21 Justice, 471 F.3d 315, 342 (2d Cir. 2006). As the BIA

22 reasonably determined, Chen’s individualized evidence was

3
1 insufficient because: (1) her affidavit was vague regarding

2 her practice of Christianity and was not based on personal

3 knowledge regarding the treatment of Christians in China;

4 (2) the affidavit from Chen’s roommate, who was not a fellow

5 congregate, merely recounted what Chen had told him about

6 her church activities; and (3) Chen’s pastors’ letter was

7 unsworn and only attested to her church attendance for a

8 period of less than two months. See id.; Jian Xing Huang v.

9 U.S. INS, 421 F.3d 125, 128-29 (2d Cir. 2005) (holding that

10 absent “solid support in the record” a fear of persecution

11 is “speculative at best”). Chen’s suggestion that the BIA’s

12 consideration of her evidence constituted impermissible

13 fact-finding is misplaced, as we have recognized that the

14 BIA will engage in fact-finding when evaluating evidence

15 submitted in support of reopening. See, e.g., Jian Hui

16 Shao, 546 F.3d at 168; Li Yong Cao v. Dep’t of Justice, 421

17 F.3d 149, 151, 156 (2d Cir. 2005).

18 Lastly, notwithstanding Chen’s assertion to the

19 contrary, the BIA reasonably noted her failure to present

20 evidence showing that authorities in China were, or would

21 likely become, aware of her religious activities in the

22 United States. See Hongsheng Leng v. Mukasey, 528 F.3d 135,

23 143 (2d Cir. 2008). 

4
1 For the foregoing reasons, the petition for review is

2 DENIED. As we have completed our review, any stay of

3 removal that the Court previously granted in this petition

4 is VACATED, and any pending motion for a stay of removal in

5 this petition is DENIED as moot. Any pending request for

6 oral argument in this petition is DENIED in accordance with

7 Federal Rule of Appellate Procedure 34(a)(2), and Second

8 Circuit Local Rule 34.1(b).

9 FOR THE COURT: 

10 Catherine O’Hagan Wolfe, Clerk

11

5