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.

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

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 21st 4 day of August, two thousand thirteen.

5

6 PRESENT:

7 JON O. NEWMAN,

8 JOHN M. WALKER, JR.,

9 CHRISTOPHER F. DRONEY,

10 Circuit Judges.

11 _____________________________________

12

13 FENG JUAN WU,

14 Petitioner,

15

16 v. 12-3

17 NAC

18

19 ERIC H. HOLDER, JR., UNITED STATES 

20 ATTORNEY GENERAL,

21 Respondent.

22 ______________________________________

23 

24 FOR PETITIONER: Yee Ling Poon, New York, New York.

25

26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

27 Attorney General; Anthony P.

28 Nicastro, Senior Litigation Counsel;

29 Jeffery R. Leist, Attorney, Office

30 of Immigration Litigation, Civil

31 Division, United States Department

32 of Justice, Washington, D.C.
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 Feng Juan Wu, a native and citizen of the People’s

6 Republic of China, seeks review of a December 8, 2011 order

7 of the BIA denying her motion to reopen. In re Feng Juan Wu,

8 No. A089 254 134 (B.I.A. Dec. 8, 2011). We assume the

9 parties’ familiarity with the underlying facts and

10 procedural history in this case.

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

12 abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d

13 Cir. 2005) (per curiam). Wu was required to demonstrate to

14 the BIA her prima facie eligibility for relief and that the

15 evidence she submitted was material and not previously

16 available. 8 C.F.R. § 1003.2(a), (c)(1); see INS v. Abudu,

17 485 U.S. 94, 104-05 (1988).

18 The BIA did not abuse its discretion in finding that Wu

19 failed to demonstrate her prima facie eligibility. See

20 Abudu, 485 U.S. at 104-05. Contrary to Wu’s assertion, the

21 BIA explicitly considered the relevant evidence of country

22 conditions and reasonably found that, although religious

2
1 freedom was limited in China and this limitation sometimes

2 rises to the level of persecution, approximately fifty to

3 one hundred million Christians worship at unregistered house

4 churches throughout China. Thus, while we have held that

5 the BIA has an obligation to consider the “record as a

6 whole,” and may abuse its discretion by denying a motion to

7 reopen without addressing “all the factors relevant to [a]

8 petitioner’s claim,” Ke Zhen Zhao v. U.S. Dep’t of Justice,

9 265 F.3d 83, 97 (2d Cir. 2001), the record does not

10 compellingly suggest that the BIA failed to take into

11 account all of the evidence before it. 

12 Moreover, while the background evidence in the record

13 identified incidents of harm to Christians in China, Wu

14 failed to submit any evidence indicating that she, herself,

15 would face harm if she returned to China. See 8 C.F.R. 

16 § 1208.13(b)(2)(iii) (requiring an alien to provide evidence

17 that there is a “reasonable possibility he or she would be

18 singled out individually for persecution” to demonstrate a

19 well-founded fear of future persecution); Hongsheng Leng v.

20 Mukasey, 528 F.3d 135, 143 (2d Cir. 2008) (per curiam)

21 (“[T]o establish a well-founded fear of persecution in the

22 absence of any evidence of past persecution, an alien must

3
1 make some showing that authorities in his country of

2 nationality are aware of his activities or likely to become

3 aware of his activities.”). Accordingly, it was reasonable

4 for the BIA to conclude that Wu’s claims were too

5 speculative to merit relief. See Jian Xing Huang v. INS,

6 421 F.3d 125, 128-29 (2d Cir. 2005) (per curiam) (holding

7 that absent support in the record for the petitioner’s

8 assertion that he would be subjected to persecution, his

9 fear was “speculative at best”).

10 Finally, as to Wu’s assertion that she will suffer

11 persecution by being prohibited from practicing her religion

12 or being forced to practice her religion in secret, she did

13 not exhaust that specific issue before the BIA. 

14 Accordingly, we decline to consider it in the first

15 instance. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d

16 104, 122 (2d Cir. 2007)(reaffirming that this Court “may

17 consider only those issues that formed the basis for [the

18 BIA’s] decision”).

19 For the foregoing reasons, the petition for review is

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

21 removal that the Court previously granted in this petition

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

4
1 this petition is DISMISSED as moot. Any pending request for

2 oral argument in this petition is DENIED in accordance with

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

4 Circuit Local Rule 34.1(b).

5 FOR THE COURT: 

6 Catherine O’Hagan Wolfe, Clerk

5