10-1165-ag

Chen v. Holder

BIA

A076 627 827

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

for the Second Circuit, held at the Daniel Patrick Moynihan

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

New York, on the 22nd day of August, two thousand eleven.

PRESENT:

JON O. NEWMAN,

RICHARD C. WESLEY,

PETER W. HALL,

Circuit Judges. 

_____________________________________

BIN CHEN, also known as MEIQIN CHEN,

Petitioner, 

 v. 10-1165-ag

NAC 

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: WaiSim M. Cheung, New York, New

York.

FOR RESPONDENT: Tony West, Assistant Attorney

General; Anthony W. Norwood, Senior

Litigation Counsel; Colin J. Tucker,

Trial Attorney, Office of

Immigration Litigation, Civil

Division, United States Department

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

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

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

review is DENIED.

Bin Chen, a native and citizen of China, seeks review

of a March 9, 2010, decision of the BIA denying her motion

to reopen. In re Bin Chen, No. A076 627 827 (B.I.A. Mar. 9,

2010). We assume the parties’ familiarity with the

underlying facts and procedural history of this case.

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

abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d

Cir. 2006). Because Chen’s May 2009 motion was filed within

90 days of the issuance of the BIA’s February 2009 final

decision following reopening and remand, Chen was not

required to demonstrate changed conditions in China. 

See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. 

§ 1003.2(c)(2),(c)(3)(ii). Although the BIA stated that

Chen sought reopening “based on a claim of changed country

conditions,” it did not abuse its discretion in denying

Chen’s motion, as it concluded not that Chen failed to

demonstrate changed country conditions, but that Chen failed

to establish her prima facie eligibility for relief.

Chen’s argument that she established her prima facie

eligibility for relief based on the birth of her U.S.

citizen children is largely foreclosed by our decision in

Jian Hui Shao v. Mukasey, 546 F.3d 138, 172-73 (2d Cir.

2008) (finding no error in the BIA’s determination that the

country conditions evidence related to Fujian Province did

not demonstrate a realistic chance that the petitioner would

be forcibly sterilized for violating the family planning

policy with the birth of her U.S. citizen children, despite

isolated reports of forced sterilization). Chen’s

contention that the BIA erred in ignoring “critical” new

evidence, particularly a special administrative reply notice

from the LangQi Town Family Planning Office addressed to

Chen and the 2005 Fujian Family Planning Rules and Practice

Publication Manual, is unavailing. The BIA did not err in

according little weight to these materials, purporting to be

from Chinese authorities, as they were not authenticated,

appeared to have been obtained for the purpose of filing to

reopen, and did not identify their author(s). See Shunfu Li

2
v. Mukasey, 529 F.3d 141, 149 (2d Cir. 2008) (although

agency may not reject document solely for lack of

authentication pursuant to 8 C.F.R. § 287.6, the agency has

“considerable flexibility in determining the authenticity of

. . . documents from the totality of the evidence”); Xiao Ji

Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.

2006). Moreover, neither the notice nor the Manual were

material to Chen’s claimed fear of forced sterilization,

because their references to the family planning policy’s

mandatory sterilization requirement did not demonstrate that

such sterilizations are performed by force. See Jian Hui

Shao, 546 F.3d at 165, 172. 

Chen further asserts that the BIA applied the wrong

burden of proof in assessing her religion-based claim by

requiring her to establish her ultimate eligibility for

relief as opposed to her prima facie eligibility. However,

the BIA’s statement that the evidence was insufficient to

demonstrate she would be subjected to persecution does not

mean that the BIA required her to establish that she would

definitely be subjected to persecution. It means simply

that she was required to show she faced a risk of such

punishment. See Guan Shan Liao v. U.S. Dep’t of Justice,

293 F.3d 61, 68-69 (2d Cir. 2002) (concluding that the BIA’s

language that an applicant had not shown “that he would be

subject to persecution on his return to China” did not

demonstrate that the BIA held the applicant to a higher

burden of proof than the well-founded fear standard, but

“simply fault[ed] the applicant for failing to show that any

of [his] actions would even potentially subject [him] to

persecution upon his return to China.”). 

In addition, the BIA reasonably concluded that Chen’s

evidence failed to establish her prima facie eligibility for

relief based on her practice of Christianity. While Chen’s

evidence demonstrates that there have been reports of the

detention and harassment of some leaders of unregistered

churches, the evidence establishes that China currently

allows the practice of religion in Christian churches and

that, in some parts of the country, unregistered Christian

groups are permitted to meet without registering.

Because the BIA considered the record evidence and

reasonably determined that Chen failed to present sufficient

3
reliable evidence demonstrating her prima facie eligibility

for relief on either ground asserted, the BIA did not abuse

its discretion in denying Chen’s motion to reopen. See INS

v. Abudu, 485 U.S. 94, 104-05 (1988) (movant’s failure to

establish prima facie case for relief sought is proper

ground on which BIA may deny motion to reopen); see also

Jian Hui Shao, 546 F.3d at 171. 

For the foregoing reasons, the petition for review is

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

removal that the Court previously granted in this petition

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

this petition is DISMISSED as moot. Any pending request for

oral argument in this petition is DENIED in accordance with

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

Circuit Local Rule 34.1(b).

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

4