11-853 Chen v. Holder BIA A094 917 582 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

## SUMMARY ORDER

**RULINGS BY SU MMARY ORDER DO NOT**  **HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER J** **ANUARY 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 14 th** **day of November, two thousand thirteen.** 4 5 **PRESENT:** 6 **ROSEMARY S. POOLER,** 7 **REENA RAGGI,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges**.** 10

**_____________________________________** 11 **JIN MING CHEN,** 12 Petitioner**,** 13 14 **v. 11-853** 15 **NAC** 16 **ERIC H. HOLDER, JR., UNITED STATES** 17 **ATTORNEY GENERAL,** 18 Respondent **.** 19

**_____________________________________** 20 21 **FOR PETITIONER: Richard Tarzia, Belle Meade,** 22 **New Jersey.** 23 24 **FOR RESPONDENT: Tony West, Assistant Attorney** 25 **General; Ernesto H. Molina, Jr.,** 26 **Assistant Director; Sheri R. Glaser,** 27 **Trial Attorney; Andrea Shuford;** 28 **Legal Intern, Office of Immigration** 29 **Litigation, United States Department** 30 **of Justice, Washington, D.C.** 31UPON 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 Jin Ming Chen, a native and citizen of the 5 People’s Republic of China, seeks review of a February 2, 6 2011, order of the BIA denying his motion to reopen. In re 7 Jin Ming Chen , No. A094 917 582 (B.I.A. Feb. 2, 2011). We 8 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). The BIA denied Chen’s motion on the grounds 13 that he failed to demonstrate his prima facieeligibility 14 for relief due to his failure to allege that he intends to 15 publicly practice Falun Gong in China and that anyone in 16 China is aware of his Falun Gong practice. 17 The BIA may deny a motion to reopen based on the 18 movant’s failure to establish a prima facie case for the 19 underlying substantive relief sought. See INS v. Abudu , 485 20 U.S. 94, 104-05 (1988). In order to establish prima facie 21 eligibility for relief, an alien must show “a realistic 22

2chance that he will be able to establish eligibility.” 1 Poradisova v. Gonzales,420 F.3d 70, 78 (2d Cir. 2 2005)(internal quotation marks omitted). In order to 3 establish eligibility for asylum based on future 4 persecution, an applicant must show that he subjectively 5 fears persecution and that this fear is objectively 6 reasonable. Ramsameachire v. Ashcroft , 357 F.3d 169, 178 7 (2d Cir. 2004). Although a fear is objectively reasonable 8 “even if there is only a slight, though discernible, chance 9 of persecution,” Diallo v. INS,232 F.3d 279, 284 (2d Cir. 10 2000), there must be “solid support” in the record and the 11 claim must be more than “speculative.” See Jian Xing Huang 12
v. INS, 421 F.3d 125, 129 (2d Cir. 2005). 13 An applicant can demonstrate an objectively reasonable 14 fear of persecution “in one of two ways: first, by offering 15 evidence that [he] would be singled out individually for 16 persecution; and second, by proving the existence of a 17 pattern or practice in [his] country of nationality of 18 persecution of a group of persons similarly situated to 19 [him] and establishing [his] own inclusion in, and 20 identification with, such a group.”Hongsheng Leng v. 21 Mukasey, 528 F.3d 135, 142 (2d Cir. 2008) (quotations and 22

3alterations omitted). As Chen did not argue that there is a 1 “pattern or practice” of persecution against Falun Gong 2 practitioners in China, he was required to establish a 3 realistic chance that he would be able to show he would be 4 singled out for persecution. Id. 5 Chen’s arguments that the BIA erred by failing to 6 consider his evidence of country conditions and by requiring 7 him to establish the Chinese government’s awareness of his 8 Falun Gong activities are unavailing as the BIA specifically 9 mentioned Chen’s evidence in its decision and reasonably 10 concluded that the evidence did not establish an 11 individualized fear of future persecution. See Xiao Ji Chen 12 v. U.S. Dep’t of Justice , 471 F.3d 315, 338 n.1 (2d Cir. 13 2006) (“we presume that an IJ has taken into account all of 14 the evidence before him, unless the record compellingly 15 suggests otherwise”); Hongsheng Leng, 528 F.3d at 142 (“to 16 establish a well-founded fear of persecution in the absence 17 of any evidence of past persecution, an alien must make some 18 showing that authorities in his country of nationality are 19 either aware of his activities or likely to become aware of 20 his activities.”). 21
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4Moreover, the BIA did not abuse its discretion by 1 finding that Chen had failed to present sufficient evidence 2 that the Chinese authorities were aware or likely to become 3 aware of his activities, as his affidavit in support of his 4 motion did not indicate his intent to practice Falun Gong 5 publicly in China and he presented no evidence that the 6 Chinese government monitored activities in the United 7
States. See Jian Xing Huang,421 F.3d at 129 (a fear is not 8 objectively reasonable if it lacks “solid support” in the 9 record and is merely “speculative at best.”). Cf. Kyaw Zar 10
Tun v. INS , 445 F.3d 554, 570 (2d Cir. 2006) (finding 11 alien’s activities in this country could support a claim for 12 relief where there was evidence that “the Burmese military 13 regime maintains a thorough and systematic intelligence14 gathering and surveillance apparatus directed specifically 15 at deterring pro-democracy activities of Burmese citizens 16 both inside and outside of Burma”). Consequently, the BIA 17 did not abuse its discretion by denying Chen’s motion to 18 reopen on the ground that he did not demonstrate his prima 19 facieeligibility of relief. See Abudu , 485 U.S. at 104-05. 20
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23 5For the foregoing reasons, the petition for review is 1
DENIED. 2 3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk 5 6

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