10-1391 (L)

Zhang v. Holder

BIA

Chew, IJ

A090 347 373

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 Thurgood Marshall United

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

on the 22nd day of May, two thousand thirteen.

PRESENT:

JON O. NEWMAN,

ROBERT A. KATZMANN,

DEBRA ANN LIVINGSTON,

 Circuit Judges. 

_______________________________________

WENDENG ZHANG,

Petitioner, 

10-1391 (L),

 v. 10-4157 (Con)

NAC 

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent.

_______________________________________

FOR PETITIONER: Gary J. Yerman, Yerman & Associates,

LLC, New York, New York.

FOR RESPONDENT: Tony West, Assistant Attorney

General; Daniel E. Goldman, Senior

Litigation Counsel; Matthew A.

Spurlock, Trial Attorney, Office of
Immigration Litigation, United

States Department of Justice,

Washington, D.C.

UPON DUE CONSIDERATION of these petitions for review of

decisions of the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED that the petitions for

review are DENIED, and the parties’ pending motions are

DENIED as moot.

Wendeng Zhang, a native and citizen of the People’s

Republic of China, seeks review of: (1) a March 29, 2010,

decision of the BIA affirming the January 4, 2008, decision

of an Immigration Judge (“IJ”), denying Zhang’s application

for asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”), In re Wendeng Zhang, No.

A090 347 373 (B.I.A. Mar. 29, 2010), aff’g No. A090 347 373

(Immig. Ct. N.Y. City Jan. 4, 2008); and (2) a September 21,

2010, decision of the BIA denying his motion to reopen, In

re Wendeng Zhang, No. A090 347 373 (B.I.A. Sept. 21, 2010). 

We assume the parties’ familiarity with the underlying facts

and procedural history in this case.

I. Docket 10-1391 (L) - Final Order of Removal

We have reviewed the IJ’s decision as supplemented by

the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d

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Cir. 2005). We review the agency’s factual findings under

the substantial evidence standard, see also Jian Hui Shao v.

Mukasey, 546 F.3d 138, 157-58 (2d Cir. 2008), and questions

of law de novo, Salimatou Bah v. Mukasey, 529 F.3d 99, 110

(2d Cir. 2008). 

Absent past persecution, an alien may establish

eligibility for asylum by demonstrating a well-founded fear

of future persecution. See 8 C.F.R. § 1208.13(b)(2). To

establish a well-founded fear of persecution, an applicant

must show that he or she subjectively fears persecution and

that this fear is objectively reasonable. Ramsameachire v.

Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). The agency did

not err in concluding that Zhang failed to demonstrate the

objective reasonableness of his fear of persecution based on

his violation of China’s family planning policy with the

birth of his two U.S. citizen children. See Jian Hui Shao,

546 F.3d at 157-67.

Although, as Zhang argues, the agency may err in

rejecting a document solely based on an alien’s failure to

properly authenticate the document pursuant to 8 C.F.R.

§ 287.6, see Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d

391, 403 (2d Cir. 2005), the agency did not decline to

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credit a family planning notice from his local village

committee based solely on his failure to authenticate the

document, but also reasonably noted that the notice was not

signed or notarized and that the author of the notice was

not identified. Moreover, the BIA alternatively evaluated

the substance of the notice and did not err in concluding

that its indication that Zhang would be subject to the

mandatory sterilization requirement did not demonstrate that

such requirement would be carried out in a manner that would

constitute persecution in light of country conditions

evidence to the contrary. See Jian Hui Shao, 546 F.3d at

165, 172. 

Furthermore, contrary to Zhang’s contention, the BIA

did not err in giving diminished weight to letters from

Zhang’s relatives because they were interested witnesses not

subject to cross examination, see Xiao Ji Chen v. U.S. Dep’t

of Justice, 471 F.3d 315, 342; see also Matter of H-L-H- &

Z-Y-Z-, 25 I. & N. Dec. 209, 214-15 & n.5 (BIA 2010)

(affording minimal weight to documents obtained solely for

removal proceedings by interested witnesses not subject to

cross-examination), remanded on other grounds by Hui Lin

Huang v. Holder, 677 F.3d 130 (2d Cir. 2012), and the

letters did not involve individuals similarly situated to

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Zhang, as the targeted individuals were women with children

born in China, and the letters lacked any description as to

the force purportedly used. See Jian Hui Shao, 546 F.3d at

160-61 & n.20 (recognizing the “irony that so many of the

asylum applicants claiming persecution under the one-child

policy are male, while physical burdens associated with

policy compliance – abortions and the vast majority of

sterilizations – are borne by women.”) (internal quotations

marks omitted); see also id. at 172 (finding no error in the

BIA’s determination that it can not infer a reasonable

possibility of forced sterilization from occasional reports

of forced sterilization that lack detail). Similarly, the

agency did not err in summarily considering the oft-cited

statement from Mr. Jin Fun Chen, who claimed to have been

forcibly sterilized in Fujian Province for violating the

family planning policy with the birth of his second child in

Japan, and concluding that the letter lacked any detail and

did not discuss the situation of individuals similarly

situated to Zhang, i.e., a Chinese national with U.S.

citizen children. See Wei Guang Wang v. BIA, 437 F.3d 270,

275 (2d Cir. 2006); see also Jian Hui Shao, 546 F.3d at 152,

155,169. 

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As to Zhang’s claimed fear of economic persecution, the

agency did not err in concluding that he failed to submit

evidence demonstrating a reasonable possibility that any

fine for the birth of his children, if imposed, would cause

him severe economic harm because he submitted no evidence of

his personal financial situation. See also Guan Shan Liao

v. U.S. Dep’t. of Justice, 293 F.3d 61, 70 (2d Cir. 2002);

Matter of T-Z-, 24 I. & N. Dec. 163, 170-75 (BIA 2007). 

Accordingly, the agency did not err in finding that Zhang

failed to demonstrate a well-founded fear of forced

sterilization or economic persecution under the family

planning policy, and reasonably denied him asylum,

withholding of removal, and CAT relief. See Jian Hui Shao,

546 F.3d at 156-67, 172; Guan Shan Liao, 293 F.3d at 70.

II. Docket 10-4157 (Con) - Denial of Motion to Reopen

We review the BIA’s denial of Zhang’s motion to reopen

for abuse of discretion, the BIA’s evaluation of relevant

country conditions under the substantial evidence standard,

and questions of law de novo. See Jian Hui Shao v. Mukasey,

546 F.3d 138, 168-69 (2d Cir. 2008); Salimatou Bah, 529 F.3d

at 110. As an initial matter, we conclude, contrary to

Zhang’s assertion, that the BIA applied the appropriate

standard by requiring Zhang to demonstrate his prima facie

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eligibility for the underlying relief sought. See Jian Hui

Shao, 546 F.3d at 168-69. 

Additionally, the BIA did not err in denying Zhang’s

motion to reopen for failure to submit new, previously

unavailable material evidence demonstrating a realistic

chance that he will face persecution in China on account of

his Christian faith. See INS v. Abudu, 485 U.S. 94, 104-05

(1988) (recognizing that a movant’s failure to present

previously unavailable, material evidence or to establish

his prima facie eligibility for the underlying relief sought

are proper grounds for denying a motion to reopen). As the

BIA noted, evidence of Zhang’s religious faith was

previously available, as was country conditions evidence

indicating that the Chinese government has regulated,

controlled, and targeted religious groups since at least

2005, well before Zhang’s January 2008 hearing. See Norani

v. Gonzales, 451 F.3d 292, 294 (2d Cir. 2006) (recognizing

that in determining if a movant’s evidence was previously

available, the proper inquiry is whether the evidence “could

have been presented at the hearing before the IJ”). 

Moreover, the BIA reasonably concluded that the country

conditions evidence did not demonstrate that Zhang had a

realistic chance of being persecuted, as various 2009 U.S.

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Department of State reports in the record indicated that

religious freedom had increased in many areas of China and

that unregistered Christian churches were common throughout

the country with most operating openly. Furthermore, as the

BIA noted, a 2009 ChinaAid report submitted by Zhang

indicated that most incidents of persecution involved

religious leaders, house churches in urban areas, and megachurches, and Zhang did not claim that he was a religious

leader, that he was from an urban area, or that he intended

to join a mega-church. See Jian Hui Shao, 546 F.3d at 160-

61, 172-73. 

Finally, the BIA did not abuse its discretion in giving

diminished weight to a letter in which Zhang’s cousin

claimed to have been detained and abused in February 2010

for attending a house church, because the letter lacked

detail and was uncorroborated by medical evidence

substantiating his cousin’s alleged injury. See Xiao Ji

Chen, 471 F.3d 315, 342; Jian Hui Shao, 546 F.3d at 155,

171-72. Accordingly, the BIA did not err in denying Zhang’s

motion to reopen for failure to submit new, previously

unavailable evidence demonstrating his prima facie

eligibility for relief. See Abudu, 485 U.S. at 104-05.

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For the foregoing reasons, the petitions for review are

DENIED. As we have completed our review, Zhang’s pending

motions for a stay of removal and the government’s motion to

expedite consideration are DENIED as moot. Any pending

request for oral argument in this petition is DENIED in

accordance with Federal Rule of Appellate Procedure

34(a)(2), and Second Circuit Local Rule 34.1(b).

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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