12-3 Wu v. Holder BIA A089-254-134 

### 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 Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 21 st** **day of August, two thousand thirteen.** 4 5 **PRESENT:** 6 **JON O. NEWMAN,** 7 **JOHN M. WALKER, JR.,** 8 **CHRISTOPHER F. DRONEY,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **FENG JUAN WU,** 13 Petitioner**,** 14 15 **v. 12-3** 16 **NAC** 17 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent**.** 21

**______________________________________** 22 23 **FOR PETITIONER: Yee Ling Poon, New York, New York.** 24 25 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 26 **Attorney General; Anthony P.** 27 **Nicastro, Senior Litigation Counsel;** 28 **Jeffery R. Leist, Attorney, Office**  29 **of Immigration Litigation, Civil** 30 **Division, United States Department** 31 **of Justice, Washington, D.C.** 32UPON 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 Feng Juan Wu, a native and citizen of the People’s 5 Republic of China, seeks review of a December 8, 2011 order 6 of the BIA denying her motion to reopen. In re Feng Juan Wu , 7 No. A089 254 134 (B.I.A. Dec. 8, 2011). We assume the 8 parties’ familiarity with the underlying facts and 9 procedural history in this case. 10 We review the BIA’s denial of a motion to reopen for 11 abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d 12 Cir. 2005) (per curiam). Wu was required to demonstrate to 13 the BIA her prima facie eligibility for relief and that the 14 evidence she submitted was material and not previously 15 available. 8 C.F.R. § 1003.2(a), (c)(1); see INS v. Abudu , 16 485 U.S. 94, 104-05 (1988). 17 The BIA did not abuse its discretion in finding that Wu 18 failed to demonstrate her prima facie eligibility. See 19 Abudu , 485 U.S. at 104-05. Contrary to Wu’s assertion, the 20 BIA explicitly considered the relevant evidence of country 21 conditions and reasonably found that, although religious 22

2freedom was limited in China and this limitation sometimes 1 rises to the level of persecution, approximately fifty to 2 one hundred million Christians worship at unregistered house 3 churches throughout China. Thus, while we have held that 4 the BIA has an obligation to consider the “record as a 5 whole,” and may abuse its discretion by denying a motion to 6 reopen without addressing “all the factors relevant to [a] 7 petitioner’s claim,” Ke Zhen Zhao v. U.S. Dep’t of Justice , 8 265 F.3d 83, 97 (2d Cir. 2001), the record does not 9 compellingly suggest that the BIA failed to take into 10 account all of the evidence before it. 11 Moreover, while the background evidence in the record 12 identified incidents of harm to Christians in China, Wu 13 failed to submit any evidence indicating that she, herself, 14 would face harm if she returned to China. See8 C.F.R. 15 § 1208.13(b)(2)(iii) (requiring an alien to provide evidence 16 that there is a “reasonable possibility he or she would be 17 singled out individually for persecution” to demonstrate a 18 well-founded fear of future persecution);Hongsheng Leng v. 19 Mukasey, 528 F.3d 135, 143 (2d Cir. 2008) (per curiam) 20 (“[T]o establish a well-founded fear of persecution in the 21 absence of any evidence of past persecution, an alien must 22

3make some showing that authorities in his country of 1 nationality are aware of his activities or likely to become 2 aware of his activities.”). Accordingly, it was reasonable 3 for the BIA to conclude that Wu’s claims were too 4 speculative to merit relief. See Jian Xing Huang v. INS, 5 421 F.3d 125, 128-29 (2d Cir. 2005) (per curiam) (holding 6 that absent support in the record for the petitioner’s 7 assertion that he would be subjected to persecution, his 8 fear was “speculative at best”). 9 Finally, as to Wu’s assertion that she will suffer 10 persecution by being prohibited from practicing her religion 11 or being forced to practice her religion in secret, she did 12 not exhaust that specific issue before the BIA. 13 Accordingly, we decline to consider it in the first 14 instance. See Lin Zhong v. U.S. Dep’t of Justice , 480 F.3d 15 104, 122 (2d Cir. 2007)(reaffirming that this Court “may 16 consider only those issues that formed the basis for [the 17 BIA’s] decision”). 18 For the foregoing reasons, the petition for review is 19 DENIED. As we have completed our review, any stay of 20 removal that the Court previously granted in this petition 21 is VACATED, and any pending motion for a stay of removal in 22

4this petition is DISMISSED as moot. Any pending request for 1 oral argument in this petition is DENIED in accordance with 2 Federal Rule of Appellate Procedure 34(a)(2), and Second 3 Circuit Local Rule 34.1(b). 4
FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk 6

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