13-1341

Chen v. Holder

BIA

A095 799 555 

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 fourteen.

5

6 PRESENT:

7 RALPH K. WINTER,

8 ROSEMARY S. POOLER,

9 RAYMOND J. LOHIER, JR.,

10 Circuit Judges.

11 _____________________________________

12

13 HUA CHEI CHEN,

14 Petitioner,

15

16 v. 13-1341

17 NAC

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL, 

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Mona Liza Fabular Lao, Brooklyn, New

24 York.

25

26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney

27 General; Paul Fiorino, Senior

28 Litigation Counsel; Franklin M.

29 Johnson, Jr., Trial 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 decision of the Board of Immigration Appeals (“BIA”), it is

3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for

4 review is DENIED.

5 Petitioner Hua Chei Chen, a native and citizen of

6 China, seeks review of a March 13, 2013, decision of the BIA

7 denying her motion to reopen. In re Hua Chei Chen, No. A095

8 799 555 (B.I.A. Mar. 13, 2013). We assume the parties’

9 familiarity with the underlying facts and procedural history

10 of this case. 

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

12 abuse of discretion, mindful of the Supreme Court’s

13 admonition that such motions are “‘disfavored.’” See Ali v.

14 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (quoting INS v.

15 Doherty, 502 U.S. 314, 322-23 (1992)). It is well

16 established that the BIA may deny such a motion on the basis

17 that the alien failed to demonstrate prima facie eligibility

18 for the relief sought, i.e., a realistic chance that she

19 will be able to establish eligibility. See INS v. Abudu,

20 485 U.S. 94, 104-05 (1988); Poradisova v. Gonzales, 420 F.3d

21 70, 78 (2d Cir. 2005). “This requires the alien to carry

22 the ‘heavy burden’ of demonstrating that the proffered new

2
1 evidence would likely alter the result in her case.” Jian

2 Hui Shao v. Mukasey, 546 F.3d 138, 168 (2d Cir. 2008)

3 (quoting Abudu, 485 U.S. at 110).

4 The BIA did not abuse its discretion in denying Chen’s

5 motion to reopen, as Chen failed to establish her prima

6 facie eligibility for asylum. To establish eligibility for

7 asylum, an applicant like Chen, who does not rely on past

8 persecution, must demonstrate a well-founded fear of future

9 persecution. See 8 U.S.C. § 1101(a)(42); Kyaw Zwar Tun v.

10 INS, 445 F.3d 554, 564 (2d Cir. 2006). Accordingly, she was

11 required to “make some showing that authorities in [her]

12 country of nationality are either aware of [her] activities

13 or likely to become aware of [her] activities.” Hongsheng

14 Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008). 

15 Contrary to Chen’s claim, the agency did not err in

16 declining to give probative weight to the new evidence she

17 submitted in support of her motion to reopen, especially

18 given the IJ’s underlying adverse credibility determination. 

19 See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147 (2d Cir.

20 2007). The agency reasonably determined that the evidence,

21 which included, inter alia, an unauthenticated village

22 notice, photographs of her practicing Falun Gong in the

23 United States, an unsworn and unnotarized letter from her

3
1 father, and 2007 and 2010 State Department reports, did not

2 demonstrate that Chinese officials knew, or were likely to

3 become aware, of her activities in the United States. See

4 Y.C. v. Holder, No. 11-2749-ag, 741 F.3d 324, 334(2d Cir.

5 2013) (deferring to agency’s determination giving an unsworn

6 letter by an interested witness “very little evidentiary

7 weight” (internal quotation marks omitted)); see also Xiao

8 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.

9 2006) (holding that weight afforded to applicant’s evidence

10 in immigration proceedings lies largely within the agency’s

11 discretion). 

12 For the foregoing reasons, the petition for review is

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

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

15 FOR THE COURT:

16 Catherine O’Hagan Wolfe, Clerk

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