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.**  **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 6 th** **day of August, two thousand twelve.** 4 5 **PRESENT:** 6 **JOSEPH M. MCLAUGHLIN,** 7 **DEBRA ANN LIVINGSTON,** 8 **RAYMOND J. LOHIER, JR.,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **WEN QING CHEN,** 13 Petitioner**,** 14 15 **v. 12-4** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_____________________________________** 21 22 **FOR PETITIONER: Yee Ling Poon, Robert Duk-Hwan Kim,** 23 **New York, New York.** 24 25 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 26 **Attorney General; Anthony C. Payne,** 27 **Senior Litigation Counsel; Margaret** 28 **Kuehne Taylor, Trial Attorney,** 29 **Office of Immigration Litigation,** 30 **Civil Division, United States** 31 **Department of Justice, Washington,** 32 **D.C.** 332 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 DENIED. 4 Petitioner Wen Qing Chen, a native and citizen of the 5 People’s Republic of China, seeks review of a December 6, 6 2011, decision of the BIA denying her motion to reopen. In 7 re Wen Qing Chen, No. A099 928 261 (B.I.A. Dec. 6, 2011). 8 We assume the parties’ familiarity with the underlying facts 9 and procedural history in this case. 10 We review the BIA’s denial of a motion to reopen for 11 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 12 (2d Cir. 2006). It is well established that the BIA may 13 deny an alien’s motion to reopen for failure to demonstrate 14 her prima facieeligibility for the underlying relief 15 sought. See INS v. Abudu , 485 U.S. 94, 104-05 (1988). To 16 establish eligibility for asylum, an applicant, like Chen, 17 who does not rely on past persecution must demonstrate an 18 objectively reasonable well-founded fear of future 19 persecution. See Kyaw Zwar Tun v. INS, 445 F.3d 554, 564 20 (2d Cir. 2006); Ramsameachire v. Ashcroft , 357 F.3d 169, 178 21 (2d Cir. 2004); 8 U.S.C. § 1101(a)(42). An asylum applicant 22 can demonstrate that a fear of future persecution is 233 objectively reasonable by either: (1) offering evidence that 1 “she would be singled out individually for persecution”; or 2 (2) “proving the existence of a pattern or practice in [] 3 her country of nationality of persecution of a group of 4 persons similarly situated to the applicant.” 8 C.F.R. 5 §§ 1208.13(b)(2), 1208.16(b)(2). 6 Chen argues that she established a well-founded fear of 7 future persecution based on her assertion that she would 8 practice in an unregistered church in China and letters from 9 individuals in her native village and background evidence 10 indicating that members of unregistered churches are 11 persecuted in China. However, the BIA reasonably declined 12 to consider her evidence to the extent that it pertained to 13 individuals who were not similarly situated to her -- 14 including members of underground churches that were not 15 located in her native Fujian Province, pastors, human rights 16 and pro-democracy activists, lawyers, and artists. See 8 17 C.F.R. § 1003.2(c)(1) (requiring that a motion to reopen be 18 based on new evidence materialto the movant’s eligibility 19 for asylum); 8 C.F.R. §§ 1208.13(b)(2), 1208.16(b)(2) 20 (providing that, to establish an objective basis for a fear 21 of future persecution, evidence of a pattern or practice of 224 persecution must involve a group of persons “similarly 1 situated to the applicant”). To the extent that Chen’s 2 evidence indicated that members of underground churches in 3 Fujian Province were sometimes subject to beatings, arrest, 4 and detention, the BIA reasonably found that, absent more 5 detailed evidence, such treatment does not rise to the level 6 of persecution. See Mei Fun Wong v. Holder, 633 F.3d 64, 72 7 (2d Cir. 2011);Beskovic v. Gonzales , 467 F.3d 223, 226 (2d 8 Cir. 2006). 9 Accordingly, the BIA did not abuse its discretion when 10 it denied Chen’s motion based on her failure to demonstrate 11 her prima facie eligibility for relief. See Jian Hui Shao , 12 546 F.3d at 168. 13 For the foregoing reasons, the petition for review is 14 DENIED. As we have completed our review, any stay of 15 removal that the Court previously granted in this petition 16 is VACATED, and any pending motion for a stay of removal in 17 this petition is DISMISSED as moot. Any pending request for 18 oral argument in this petition is DENIED in accordance with 19 Federal Rule of Appellate Procedure 34(a)(2), and Second 20 Circuit Local Rule 34.1(b). 21
FOR THE COURT: 22 Catherine O’Hagan Wolfe, Clerk 23 24 25