10-176-ag

Chen v. Holder

BIA

A078 698 120

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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

2 for the Second Circuit, held at the Daniel Patrick Moynihan

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

New York, on the 5th 4 day of April, two thousand twelve.

5

6 PRESENT:

7 DENNIS JACOBS,

8 Chief Judge,

9 ROSEMARY S. POOLER,

10 DEBRA ANN LIVINGSTON,

11 Circuit Judges. 

12 _______________________________________

13

14 CAI MING CHEN,

15 Petitioner, 16

17 v. 10-176-ag

18 NAC 

19 ERIC H. HOLDER, JR., UNITED STATES 

20 ATTORNEY GENERAL,

21 Respondent. 22 ______________________________________ 23

24 FOR PETITIONER: Lee Ratner, Law Offices of Michael Brown,

25 New York, New York.

26

27 FOR RESPONDENT: Tony West, Assistant Attorney General;

28 Blair T. O’Connor, Assistant Director;

29 Saul Greenstein, Trial Attorney, Office

30 of Immigration Litigation, Civil

31 Division, United States Department of

32 Justice, Washington, D.C.
2

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 DISMISSED in part and DENIED in part.

5 Petitioner Cai Ming Chen, a native and citizen of

6 China, seeks review of a December 23, 2009, order of the BIA

7 denying his motion to reopen. In re Cai Ming Chen, No. A078

8 698 120 (B.I.A. Dec. 23, 2009). We assume the parties’

9 familiarity with the underlying facts and procedural history

10 in this case.

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

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

13 Cir. 2006). The underlying decision, for which reopening is

14 sought, denied Chen’s claim which was premised on the

15 allegation that his wife suffered forced sterilization. 

16 After the BIA’s rejection of that claim, Chen sought to

17 reopen on the ground that he had begun to practice Falun

18 Gong in this country (and that his wife was detained for her

19 practice of Falun Gong in China). As an initial matter,

20 because Chen has filed a timely petition for review from the

21 denial of his motion to reopen, not from the underlying

22 decision, we review only the denial of the motion to reopen, 

23 See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-
3

1 90 (2d Cir. 2001), and we dismiss, for lack of jurisdiction,

2 Chen’s petition insofar as he seeks review of the BIA’s May

3 2009 decision.

4 As to the December 2009 decision, the BIA did not abuse

5 its discretion in denying Chen’s motion to reopen based on

6 Chen’s failure to establish his prima facie eligibility for

7 relief. The only evidence in support of reopening was

8 Chen’s own affidavit in which he asserted that he practiced

9 Falun Gong and that his wife had been arrested for

10 practicing Falun Gong, and an affidavit from Chen’s cousin,

11 confirming that Chen practiced Falun Gong. Chen argues that

12 he could not provide corroboration with his motion to reopen

13 because he had to comply with the time limitations on such

14 motions. However, the need to comply with the time

15 limitations does not lighten the “heavy burden” of

16 proffering sufficient evidence to establish a realistic

17 chance of relief. See Jian Hui Shao v. Mukasey, 546 F.3d

18 138, 168 (2d Cir. 2008) (quotation omitted); see also 8

19 U.S.C. § 1229(a)(c)(7) (exceptions to timing requirements

20 without mention of difficulty of obtaining evidence).

21 Because Chen’s motion included no evidence to 

22 corroborate his claimed practice of Falun Gong or Chen’s

23 assertion that his wife was arrested, or his objective fear
4

1 of harm, the BIA did not abuse its discretion in finding

2 that Chen’s bare allegations did not establish prima facie

3 eligibility for relief based on his purported practice of

4 Falun Gong. See Jian Hui Shao, 546 F.3d at 160-61, 168,

5 170-72; INS v. Abudu, 485 U.S. 94, 104-05 (1988) (explaining

6 that the movant’s failure to establish a prima facie case

7 for the underlying substantive relief sought is a proper

8 ground on which the BIA may deny a motion to reopen).

9 For the foregoing reasons, the petition for review is

10 DISMISSED in part and DENIED in part. As we have completed

11 our review, the pending motion for a stay of removal in this

12 petition is DISMISSED as moot.

13

14 FOR THE COURT: 

15 Catherine O’Hagan Wolfe, Clerk

16

17

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