11-3588

Sha v. Holder

BIA

A098 027 567

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Daniel Patrick Moynihan

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

New York, on the 14th day of June, two thousand twelve.

PRESENT:

GUIDO CALABRESI,

ROBERT A. KATZMANN,

RICHARD C. WESLEY,

Circuit Judges. 

_____________________________________

YI SHA,

Petitioner, 

 v. 11-3588

NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: John Z. Zhang, New York, N.Y.

FOR RESPONDENT: Stuart F. Delery, Acting Assistant

Attorney General; Cindy Ferrier,

Assistant Director; Kimberly A.

Burdge, Trial Attorney, Office of

Immigration Litigation, Civil

Division, United States Department

of Justice, Washington, D.C.
2

UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Petitioner Yi Sha, a native and citizen of the People’s

Republic of China, seeks review of an August 30, 2011, order

of the BIA denying his motion to reopen. In re Yi Sha, No.

A098 027 567 (B.I.A. Aug. 30, 2011). We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

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

abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517

(2d Cir. 2006)(per curiam). It is well established that the

BIA may deny an alien’s motion to reopen for failure to

demonstrate his prima facie eligibility for the underlying

relief sought. See INS v. Abudu, 485 U.S. 94, 104-05

(1988). To establish eligibility for asylum, an applicant,

like Sha, who does not rely on past persecution must

demonstrate a well-founded fear of future persecution. See

Kyaw Zwar Tun v. INS, 445 F.3d 554, 564 (2d Cir. 2006); 8

U.S.C. § 1101(a)(42). “[T]o establish a well-founded fear

of persecution in the absence of any evidence of past
3

persecution, an alien must make some showing that

authorities in his country of nationality are either aware

of his activities or likely to become aware of his

activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 143

(2d Cir. 2008)(per curiam).

Sha argues that he demonstrated that Chinese

authorities were likely to become aware of Sha’s Falun Gong

practice based on his affidavit and letters from his wife

and friend, which stated that he would continue to practice

Falun Gong in China, and background material indicating that

the Chinese government had banned Falun Gong since 1999 and

continually mistreated its practitioners. The BIA

reasonably found that this evidence failed to show that

Chinese authorities are likely to become aware of his

practice of Falun Gong because it does not discuss whether

authorities currently attempt to identify and monitor, as

they once did, the millions of Falun Gong practitioners in

China. See Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d

Cir. 2004) (noting the need for “reliable, specific,

objective” evidence to demonstrate an objectively reasonable

fear of persecution); see also Jian Xing Huang v. INS, 421

F.3d 125, 129 (2d Cir. 2005)(per curiam)(holding that a fear
4

is not objectively reasonable if it lacks “solid support” in

the record and is merely “speculative at best”).

Accordingly, the BIA did not abuse its discretion when it

denied Sha’s motion based on his failure to demonstrate his

prima facie eligibility for relief. See Jian Hui Shao v.

Mukasey, 546 F.3d 138, 168 (2d Cir. 2008); see also

Hongsheng Leng, 528 F.3d at 143. 

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, the pending motion

for a stay of removal in this petition is DENIED as moot. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk