11-853

Chen v. Holder

BIA

A094 917 582

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 14th 4 day of November, two thousand thirteen.

5

6 PRESENT:

7 ROSEMARY S. POOLER,

8 REENA RAGGI,

9 SUSAN L. CARNEY,

10 Circuit Judges.

11 _____________________________________

12 JIN MING CHEN,

13 Petitioner, 

14

15 v. 11-853

16 NAC 

17 ERIC H. HOLDER, JR., UNITED STATES

18 ATTORNEY GENERAL, 

19 Respondent.

20 _____________________________________

21

22 FOR PETITIONER: Richard Tarzia, Belle Meade, 

23 New Jersey.

24

25 FOR RESPONDENT: Tony West, Assistant Attorney

26 General; Ernesto H. Molina, Jr.,

27 Assistant Director; Sheri R. Glaser,

28 Trial Attorney; Andrea Shuford;

29 Legal Intern, Office of Immigration

30 Litigation, United States Department

31 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 Petitioner Jin Ming Chen, a native and citizen of the

6 People’s Republic of China, seeks review of a February 2,

7 2011, order of the BIA denying his motion to reopen. In re

8 Jin Ming Chen, No. A094 917 582 (B.I.A. Feb. 2, 2011). We

9 assume the parties’ familiarity with the underlying facts

10 and procedural history in this case. 

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

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

13 (2d Cir. 2006). The BIA denied Chen’s motion on the grounds

14 that he failed to demonstrate his prima facie eligibility

15 for relief due to his failure to allege that he intends to

16 publicly practice Falun Gong in China and that anyone in

17 China is aware of his Falun Gong practice. 

18 The BIA may deny a motion to reopen based on the

19 movant’s failure to establish a prima facie case for the

20 underlying substantive relief sought. See INS v. Abudu, 485

21 U.S. 94, 104-05 (1988). In order to establish prima facie

22 eligibility for relief, an alien must show “a realistic

2
1 chance that he will be able to establish eligibility.” 

2 Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir.

3 2005)(internal quotation marks omitted). In order to

4 establish eligibility for asylum based on future

5 persecution, an applicant must show that he subjectively

6 fears persecution and that this fear is objectively

7 reasonable. Ramsameachire v. Ashcroft, 357 F.3d 169, 178

8 (2d Cir. 2004). Although a fear is objectively reasonable

9 “even if there is only a slight, though discernible, chance

10 of persecution,” Diallo v. INS, 232 F.3d 279, 284 (2d Cir.

11 2000), there must be “solid support” in the record and the

12 claim must be more than “speculative.” See Jian Xing Huang

13 v. INS, 421 F.3d 125, 129 (2d Cir. 2005). 

14 An applicant can demonstrate an objectively reasonable

15 fear of persecution “in one of two ways: first, by offering

16 evidence that [he] would be singled out individually for

17 persecution; and second, by proving the existence of a

18 pattern or practice in [his] country of nationality of

19 persecution of a group of persons similarly situated to

20 [him] and establishing [his] own inclusion in, and

21 identification with, such a group.” Hongsheng Leng v.

22 Mukasey, 528 F.3d 135, 142 (2d Cir. 2008) (quotations and

3
1 alterations omitted). As Chen did not argue that there is a

2 “pattern or practice” of persecution against Falun Gong

3 practitioners in China, he was required to establish a

4 realistic chance that he would be able to show he would be

5 singled out for persecution. Id.

6 Chen’s arguments that the BIA erred by failing to

7 consider his evidence of country conditions and by requiring

8 him to establish the Chinese government’s awareness of his

9 Falun Gong activities are unavailing as the BIA specifically

10 mentioned Chen’s evidence in its decision and reasonably

11 concluded that the evidence did not establish an

12 individualized fear of future persecution. See Xiao Ji Chen

13 v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n.1 (2d Cir.

14 2006) (“we presume that an IJ has taken into account all of

15 the evidence before him, unless the record compellingly

16 suggests otherwise”); Hongsheng Leng, 528 F.3d at 142 (“to

17 establish a well-founded fear of persecution in the absence

18 of any evidence of past persecution, an alien must make some

19 showing that authorities in his country of nationality are

20 either aware of his activities or likely to become aware of

21 his activities.”).

22

4
1 Moreover, the BIA did not abuse its discretion by

2 finding that Chen had failed to present sufficient evidence

3 that the Chinese authorities were aware or likely to become

4 aware of his activities, as his affidavit in support of his

5 motion did not indicate his intent to practice Falun Gong

6 publicly in China and he presented no evidence that the

7 Chinese government monitored activities in the United

8 States. See Jian Xing Huang, 421 F.3d at 129 (a fear is not

9 objectively reasonable if it lacks “solid support” in the

10 record and is merely “speculative at best.”). Cf. Kyaw Zar

11 Tun v. INS, 445 F.3d 554, 570 (2d Cir. 2006) (finding

12 alien’s activities in this country could support a claim for

13 relief where there was evidence that “the Burmese military

14 regime maintains a thorough and systematic intelligence15 gathering and surveillance apparatus directed specifically

16 at deterring pro-democracy activities of Burmese citizens

17 both inside and outside of Burma”). Consequently, the BIA

18 did not abuse its discretion by denying Chen’s motion to

19 reopen on the ground that he did not demonstrate his prima

20 facie eligibility of relief. See Abudu, 485 U.S. at 104-05.

21

22

23

5
1 For the foregoing reasons, the petition for review is

2 DENIED. 

3

4 FOR THE COURT: 

5 Catherine O’Hagan Wolfe, Clerk

6

6