12-1772 Guan v. Lynch BIA A072 765 896 

### 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 TO 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**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **10 th**  **day of May, two thousand sixteen.** 4 5 **PRESENT:** 6 **ROBERT D. SACK,** 7 **GERARD E. LYNCH,** 8 **CHRISTOPHER F. DRONEY,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **SHI HUI GUAN,** 13 Petitioner **,** 14 15 **v. 12-1772** 16 **NAC** 17 **LORETTA E. LYNCH, UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Ning Ye, Flushing, New York. 23 24 **FOR RESPONDENT:** Stuart F. Delery, Acting Assistant 25 Attorney General; Blair T. O’Connor, 26 Assistant Director; Jane T. 27 Schaffner, Trial Attorney, Office of 28 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 is 3

DENIED. 4 Petitioner Shi Hui Guan, a native and citizen of the 5 People’s Republic of China, seeks review of a March 30, 2012, 6 decision of the BIA, denying his motion to reopen. In re Shi 7 Hui Guan, No. A072 765 896 (B.I.A. Mar. 30, 2012). We assume 8 the parties’ familiarity with the underlying facts and 9 procedural history in this case. 10 Our review is limited to the BIA’s denial of Guan’s motion 11 to reopen, and we do not consider his challenges to the agency’s 12 underlying adverse credibility determination. See Ke Zhen 13 Zhao v. U.S. Dep’t of Justice , 265 F.3d 83, 89-90 (2d Cir. 2001). 14 The applicable standards of review are well established. See 15 Jian Hui Shao v. Mukasey , 546 F.3d 138, 168-69 (2d Cir. 2008). 16 The BIA did not abuse its discretion in denying Guan’s 17 motion to reopen because he failed to demonstrate his prima 18 facie eligibility for relief. See INS v. Abudu , 485 U.S. 94, 19 104 (1988). In light of the agency’s underlying adverse 20 credibility determination, the BIA reasonably declined to 21 credit Guan’s affidavit, see Qin Wen Zheng v. Gonzales , 500 F.3d 22 143, 147 (2d Cir. 2007), which was the only evidence provided 23to support his assertion that he has practiced Falun Gong in 1

the United States since 1998 even though he claimed that he meets 2 weekly with other practitioners (who could have corroborated 3 his claims). Furthermore, the BIA did not err in finding that 4 Guan failed to establish his prima facie eligibility for relief 5 because he did not submit any evidence showing that the Chinese 6 government was aware of or likely to become aware of his 7 purported practice of Falun Gong. See Hongsheng Leng v. 8 Mukasey , 528 F.3d 135, 143 (2d Cir. 2008). 9 Accordingly, the BIA did not abuse its discretion in 10 denying Guan’s motion to reopen. See Abudu , 485 U.S. at 104-05; 11 see also Jian Hui Shao , 546 F.3d at 168. We do not consider 12 Guan’s remaining arguments as he did not exhaust them before 13

the BIA. See Lin Zhong v. U.S. Dep’t of Justice , 480 F.3d 104, 14 119-22 (2d Cir. 2007). 15 For the foregoing reasons, the petition for review is 16 DENIED. As we have completed our rev iew, the stay of removal 17 that the Court previously granted in this petition is VACATED. 18

19 FOR THE COURT: 20 Catherine O’Hagan Wolfe, Clerk 21