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GAO v. HOLDER, 10-4274-ag-NAC. (2012)

Court: Court of Appeals for the Second Circuit Number: infco20120222144 Visitors: 11
Filed: Feb. 22, 2012
Latest Update: Feb. 22, 2012
Summary: SUMMARY ORDER 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 Huiquan Gao, a native and citizen of the People's Republic of China, seeks review of a September 27, 2010, order of the BIA denying his motion to reopen. In re Huiquan Gao, No. A094 824 879 (B.I.A. Sept. 27, 2010). We assume the parties' familiarity with the underlying facts and pro
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SUMMARY ORDER

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 Huiquan Gao, a native and citizen of the People's Republic of China, seeks review of a September 27, 2010, order of the BIA denying his motion to reopen. In re Huiquan Gao, No. A094 824 879 (B.I.A. Sept. 27, 2010). We assume the parties' familiarity with the underlying facts and procedural history in this 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), mindful of the Supreme Court's admonition that motions to reopen are "disfavored," Maghradze v. Gonzales, 462 F.3d 150, 154 (2d Cir. 2006). Here, the BIA did not abuse its discretion in denying Gao's motion to reopen based on his failure to establish his prima facie eligibility for relief. See INS v. Abudu, 485 U.S. 94, 104 (1988).

In order to establish prima facie eligibility for relief, an alien must show "a realistic chance that he will be able to establish eligibility." Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005)(internal quotation marks omitted). In order to establish eligibility for asylum based on future persecution, an applicant must show "that he subjectively fears persecution and . . . that his fear is objectively reasonable." Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). "[T]o establish a well-founded fear of persecution in the absence of any evidence of past persecution, an alien must make some showing that authorities in his country of nationality are either aware of his activities or likely to become aware of his activities." Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008).

The BIA reasonably denied Gao's motion to reopen based on the absence of evidence that anyone in China is aware of his reported recent actions, or that anyone there has the interest, means and ability to harm him as a result. "A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing." 8 C.F.R. § 1003.2(c)(1).

The BIA reasonably found that the documents Gao submitted in conjunction with his motion to reopen, including evidence of his membership in the River of Life Christian Church, various country conditions reports regarding the persecution of Christians in China, and two affidavits whose authors claimed to have been penalized for their participation in an unidentified house church in China, either did not constitute previously unavailable evidence, or failed to demonstrate that the Chinese government is aware of his activities as a Christian or that it would likely become aware of such activities. Moreover, the country conditions evidence indicated that the Chinese government often allowed underground churches to meet. Accordingly, the Board did not abuse its discretion in denying Gao's motion. See Abudu, 485 U.S. 104-05.

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).

Source:  Leagle

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