12-4 BIA

Chen v. Holder A099 928 261

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 Daniel Patrick Moynihan

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

New York, on the 6th 4 day of August, two thousand twelve.

5

6 PRESENT:

7 JOSEPH M. MCLAUGHLIN,

8 DEBRA ANN LIVINGSTON,

9 RAYMOND J. LOHIER, JR.,

10 Circuit Judges. 

11 _____________________________________

12

13 WEN QING CHEN,

14 Petitioner, 15

16 v. 12-4

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Yee Ling Poon, Robert Duk-Hwan Kim,

24 New York, New York.

25

26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

27 Attorney General; Anthony C. Payne,

28 Senior Litigation Counsel; Margaret

29 Kuehne Taylor, Trial Attorney,

30 Office of Immigration Litigation,

31 Civil Division, United States

32 Department of Justice, Washington,

33 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 DENIED.

5 Petitioner Wen Qing Chen, a native and citizen of the

6 People’s Republic of China, seeks review of a December 6,

7 2011, decision of the BIA denying her motion to reopen. In

8 re Wen Qing Chen, No. A099 928 261 (B.I.A. Dec. 6, 2011). 

9 We 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). It is well established that the BIA may

14 deny an alien’s motion to reopen for failure to demonstrate

15 her prima facie eligibility for the underlying relief

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

17 establish eligibility for asylum, an applicant, like Chen,

18 who does not rely on past persecution must demonstrate an

19 objectively reasonable well-founded fear of future

20 persecution. See Kyaw Zwar Tun v. INS, 445 F.3d 554, 564

21 (2d Cir. 2006); Ramsameachire v. Ashcroft, 357 F.3d 169, 178

22 (2d Cir. 2004); 8 U.S.C. § 1101(a)(42). An asylum applicant

23 can demonstrate that a fear of future persecution is
3

1 objectively reasonable by either: (1) offering evidence that

2 “she would be singled out individually for persecution”; or

3 (2) “proving the existence of a pattern or practice in []

4 her country of nationality of persecution of a group of

5 persons similarly situated to the applicant.” 8 C.F.R.

6 §§ 1208.13(b)(2), 1208.16(b)(2). 

7 Chen argues that she established a well-founded fear of

8 future persecution based on her assertion that she would

9 practice in an unregistered church in China and letters from

10 individuals in her native village and background evidence

11 indicating that members of unregistered churches are

12 persecuted in China. However, the BIA reasonably declined

13 to consider her evidence to the extent that it pertained to

14 individuals who were not similarly situated to her --

15 including members of underground churches that were not

16 located in her native Fujian Province, pastors, human rights

17 and pro-democracy activists, lawyers, and artists. See 8

18 C.F.R. § 1003.2(c)(1) (requiring that a motion to reopen be

19 based on new evidence material to the movant’s eligibility

20 for asylum); 8 C.F.R. §§ 1208.13(b)(2), 1208.16(b)(2)

21 (providing that, to establish an objective basis for a fear

22 of future persecution, evidence of a pattern or practice of
4

1 persecution must involve a group of persons “similarly

2 situated to the applicant”). To the extent that Chen’s

3 evidence indicated that members of underground churches in

4 Fujian Province were sometimes subject to beatings, arrest,

5 and detention, the BIA reasonably found that, absent more

6 detailed evidence, such treatment does not rise to the level

7 of persecution. See Mei Fun Wong v. Holder, 633 F.3d 64, 72

8 (2d Cir. 2011); Beskovic v. Gonzales, 467 F.3d 223, 226 (2d

9 Cir. 2006). 

10 Accordingly, the BIA did not abuse its discretion when

11 it denied Chen’s motion based on her failure to demonstrate

12 her prima facie eligibility for relief. See Jian Hui Shao,

13 546 F.3d at 168. 

14 For the foregoing reasons, the petition for review is

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

16 removal that the Court previously granted in this petition

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

18 this petition is DISMISSED as moot. Any pending request for

19 oral argument in this petition is DENIED in accordance with

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

21 Circuit Local Rule 34.1(b).

22 FOR THE COURT: 

23 Catherine O’Hagan Wolfe, Clerk

24

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