10-176-ag Chen v. Holder BIA A078 698 120



### 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 5 th** **day of April, two thousand twelve.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 Chief Judge, 8 **ROSEMARY S. POOLER,** 9 **DEBRA ANN LIVINGSTON,** 10 Circuit Judges**.** 11

**_______________________________________** 12 13 **CAI MING CHEN,** 14 Petitioner**,** 15 16 **v. 10-176-ag** 17 **NAC** 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent**.** 21

**______________________________________** 22 23 **FOR PETITIONER: Lee Ratner, Law Offices of Michael Brown,** 24 **New York, New York.** 25 26 **FOR RESPONDENT: Tony West, Assistant Attorney General;** 27 **Blair T. O’Connor, Assistant Director;** 28 **Saul Greenstein, Trial Attorney, Office** 29 **of Immigration Litigation, Civil** 30 **Division, United States Department of** 31 **Justice, Washington, D.C.** 322 UPON 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 DISMISSED in part and DENIED in part. 4 Petitioner Cai Ming Chen, a native and citizen of 5 China, seeks review of a December 23, 2009, order of the BIA 6 denying his motion to reopen. In re Cai Ming Chen, No. A078 7 698 120 (B.I.A. Dec. 23, 2009). We assume the parties’ 8 familiarity with the underlying facts and procedural history 9 in this case. 10 We review the BIA’s denial of a motion to reopen for 11 abuse of discretion. Ali v. Gonzales , 448 F.3d 515, 517 (2d 12 Cir. 2006). The underlying decision, for which reopening is 13 sought, denied Chen’s claim which was premised on the 14 allegation that his wife suffered forced sterilization. 15 After the BIA’s rejection of that claim, Chen sought to 16 reopen on the ground that he had begun to practice Falun 17 Gong in this country (and that his wife was detained for her 18 practice of Falun Gong in China). As an initial matter, 19 because Chen has filed a timely petition for review from the 20 denial of his motion to reopen, not from the underlying 21 decision, we review only the denial of the motion to reopen, 22 See Ke Zhen Zhao v. U.S. Dep’t of Justice , 265 F.3d 83, 89- 233 90 (2d Cir. 2001), and we dismiss, for lack of jurisdiction, 1 Chen’s petition insofar as he seeks review of the BIA’s May 2 2009 decision. 3 As to the December 2009 decision, the BIA did not abuse 4 its discretion in denying Chen’s motion to reopen based on 5 Chen’s failure to establish his prima facieeligibility for 6 relief. The only evidence in support of reopening was 7 Chen’s own affidavit in which he asserted that he practiced 8 Falun Gong and that his wife had been arrested for 9 practicing Falun Gong, and an affidavit from Chen’s cousin, 10 confirming that Chen practiced Falun Gong. Chen argues that 11 he could not provide corroboration with his motion to reopen 12 because he had to comply with the time limitations on such 13 motions. However, the need to comply with the time 14 limitations does not lighten the “heavy burden” of 15 proffering sufficient evidence to establish a realistic 16 chance of relief. See Jian Hui Shao v. Mukasey, 546 F.3d 17 138, 168 (2d Cir. 2008) (quotation omitted); see also8 18 U.S.C. § 1229(a)(c)(7) (exceptions to timing requirements 19 without mention of difficulty of obtaining evidence). 20 Because Chen’s motion included no evidence to 21 corroborate his claimed practice of Falun Gong or Chen’s 22 assertion that his wife was arrested, or his objective fear 234 of harm, the BIA did not abuse its discretion in finding 1 that Chen’s bare allegations did not establish prima facie 2 eligibility for relief based on his purported practice of 3 Falun Gong. See Jian Hui Shao , 546 F.3d at 160-61, 168, 4
170-72; INS v. Abudu , 485 U.S. 94, 104-05 (1988) (explaining 5 that the movant’s failure to establish a prima faciecase 6 for the underlying substantive relief sought is a proper 7 ground on which the BIA may deny a motion to reopen). 8 For the foregoing reasons, the petition for review is 9 DISMISSED in part and DENIED in part. As we have completed 10 our review, the pending motion for a stay of removal in this 11 petition is DISMISSED as moot. 12 13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk 15 16 17 18