09-1268-ag

Chen v. Holder

BIA

A078 692 239

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.

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 22 day of September, two thousand ten. nd

PRESENT:

DENNIS JACOBS,

Chief Judge, 

JON O. NEWMAN,

DENNY CHIN,

 Circuit Judges. 

______________________________________

YU ZHEN CHEN,

Petitioner, 

09-1268-ag

 v. 

UNITED STATES DEPARTMENT OF JUSTICE,

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondents.

______________________________________

FOR PETITIONER: Yee Ling Poon, Robert Duk-Hwan Kim,

Law Offices of Yee Ling Poon, LLC, New

York, New York.

FOR RESPONDENTS: Tony West, Assistant Attorney General;

Ernesto H. Molina, Jr., Assistant

Director; Dana M. Camilleri, Trial

Attorney, Office of Immigration

Litigation, Civil Division, United
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States Department of Justice,

Washington, D.C.

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, Yu Zhen Chen, a native and citizen of the

People’s Republic of China, seeks review of a February 27,

2009, order of the BIA denying her motion to reopen her

removal proceedings. In re Yu Zhen Chen, No. A078 692 239

(B.I.A. Feb. 27, 2009). We assume the parties’ familiarity

with the underlying facts and procedural history of the case.

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

abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d

Cir. 2006). In denying Chen’s motion to reopen based on her

claimed fear of persecution on account of her husband’s prodemocracy activities in the United States, the BIA reasonably

noted that Chen’s husband had been active in the pro-democracy

movement since December 2003, and that her claim, along with

much of the evidence she submitted in support of that claim,

could have been presented at her November 2005 hearing before

an IJ. See 8 C.F.R. § 1003.2(c)(1); see also INS v. Abudu,

485 U.S. 94, 104 (1988). 
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Chen argues that the BIA ignored certain statements in

her husband’s affidavit post-dating her 2005 hearing, as well

as previously unavailable evidence that two prominent Chinese

dissidents were arrested and detained. However, a reasonable

fact-finder would not be compelled to conclude that the BIA

ignored any material evidence that she submitted. See Jian

Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008); see

also Xiao Ji Chen v. Dep’t of Justice, 471 F.3d 315, 337 n.17

(2d Cir. 2006). In fact, in addition to finding that much of

Chen’s evidence was previously available, the BIA reasonably

found that Chen’s evidence did not establish her prima facie

eligibility for relief based on her husband’s alleged prodemocracy activities because her husband statements and the

arrest of two Chinese dissidents did not overcome an IJ’s

prior determination that Chen’s husband was not credible. See

Kaur v. BIA, 413 F.3d 232, 234 (2d Cir. 2005) (per curiam)

(holding that evidence submitted was not material because it

did not overcome the IJ’s prior adverse credibility

determination); see also Wensheng Yan v. Mukasey, 509 F.3d 63,

65 n.1 (2d Cir. 2007) (noting that “because the alleged

persecution of Yan’s wife was the predicate for his alleged

resistance to sterilization, the IJ’s implausibility finding

as to that spousal persecution reasonably extended to Yan’s
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personal resistance.”). 

Moreover, we find speculative Chen’s argument that she

“established a realistic chance of establishing a reasonable

possibility of suffering persecution by witnessing the

persecution of her husband.” See Jian Xing Huang v. INS, 421

F.3d 125, 129 (2d Cir. 2005). Although an asylum applicant

cannot succeed on claims of past persecution or fear of future

persecution based solely on persecution inflicted on a family

member on account of the family member’s political opinion, we

have recognized that there may exist circumstances when harm

to an applicant’s family member in conjunction with other

factors may be sufficiently severe to amount to persecution.

See Tao Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007);

Jorge-Tzoc v. Gonzales, 435 F.3d 146, 150 (2d Cir. 2006). In

such cases, however, the “harm suffered by family members in

combination with other factors . . . would presumably only be

[persecution] where . . . the applicant not only shares (or is

perceived to share) the characteristic that motivated

persecutors to harm the family members, but was also within

the zone of risk when the family member was harmed, and

suffered some continuing hardship after the incident.” Tao

Jiang, 500 F.3d at 141-42 (citing Jorge-Tzoc, 435 F.3d at

150). Because Chen provided no evidence beyond general
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country conditions evidence regarding the treatment of

political dissidents in China and made no assertion that she

shares the alleged political opinion of her husband, she

failed to demonstrate her prima facie eligibility for relief

based on this claim. See Abudu, 485 U.S. at 104.

Accordingly, the BIA did not abuse its discretion in denying

Chen’s motion to reopen. See Kaur, 413 F.3d at 233.

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, any stay of removal

that the Court previously granted in this petition is VACATED,

and any pending motion for a stay of removal in this petition

is DISMISSED 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