Filed: Sep. 23, 2010
Latest Update: Feb. 21, 2020
Summary: 09-5022-ag Chen v. Holder BIA A097 530 494 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 “SU
Summary: 09-5022-ag Chen v. Holder BIA A097 530 494 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 “SUM..
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09-5022-ag
Chen v. Holder
BIA
A097 530 494
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 23 rd day of September, two thousand ten.
5
6 PRESENT:
7 JOSEPH M. McLAUGHLIN,
8 GUIDO CALABRESI,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 LIN CHEN,
14 Petitioner,
15
16 v. 09-5022-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Jed S. Wasserman, New York, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Lyle D. Jentzer, Senior
28 Litigation Counsel; Aaron R. Petty,
29 Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
33 UPON DUE CONSIDERATION of this petition for review of a
1 decision of the Board of Immigration Appeals (“BIA”), it is
2 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
3 review is DENIED.
4 Lin Chen, a native and citizen of the People’s Republic
5 of China, seeks review of a November 6, 2009, order of the
6 BIA denying her motion to reopen. In re Lin Chen , No. A097
7 530 494 (B.I.A. Nov. 6, 2009). We assume the parties’
8 familiarity with the underlying facts and procedural history
9 of this case.
10 We review the BIA’s denial of Chen’s motion to reopen
11 for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517
12 (2d Cir. 2006). “A motion to reopen proceedings shall not
13 be granted unless it appears to the Board that evidence
14 sought to be offered is material and was not available and
15 could not have been discovered or presented at the former
16 hearing . . . .” 8 C.F.R. § 1003.2(c)(1). Moreover, even
17 if the evidence presented with a motion to reopen is both
18 material and previously unavailable, an alien’s “ability to
19 secure reopening depends on a demonstration of prima facie
20 eligibility for asylum, which means she must show a
21 ‘realistic chance’ that she will be able to obtain such
22 relief.” Jian Hui Shao v. Mukasey,
546 F.3d 138, 168 (2d
23 Cir. 2008) (quoting Poradisova v. Gonzales,
420 F.3d 70, 78
2
1 (2d Cir. 2005)) . Here, the BIA did not abuse its discretion
2 in denying Chen’s motion to reopen.
3 Contrary to Chen’s argument, the BIA did not fail to
4 consider any of Chen’s background evidence in finding that
5 she failed to demonstrate her prima facie eligibility for
6 relief based on her membership in the China Democracy Party
7 (“CDP”). See id. at 169 (finding that, where the agency
8 provides rational explanations for its conclusions, it need
9 not “expressly parse or refute on the record each individual
10 argument or piece of evidence offered by the
11 petitioner”)(citation omitted). Here, as the BIA noted, all
12 of the articles and other evidence Chen submitted did not
13 pertain to individuals similarly situated to Chen, namely
14 those who conducted CDP activities in the United States.
15 Rather, these articles pertained to individuals who were
16 imprisoned in China for democratic activities they carried
17 out in China. And, as the BIA explained, “in the absence of
18 specifics” it could not “simply extrapolate” as to how
19 Chen’s “activities in the United States would be viewed.”
20 Thus, we find no error in the BIA’s determination that
21 Chen’s background evidence failed to demonstrate her prima
22 facie eligibility for relief. See
id. at 168.
23 We also find no merit in Chen’s argument that the BIA
3
1 failed to consider adequately the letters from Chen’s
2 daughter and sister stating that police came to Chen’s house
3 looking for Chen and stating that they are aware of her CDP
4 activities. As discussed above, this evidence does not
5 overcome the BIA’s concern that, even if the Chinese
6 government were aware of Chen’s support for the CDP, Chen
7 did not present any evidence demonstrating that she would be
8 subject to the same treatment as political dissidents who
9 carry out their activities in China. Consequently, we find
10 no abuse of discretion in the BIA’s denial of Chen’s motion
11 to reopen based on its finding that the evidence she
12 presented failed to demonstrate her prima facie eligibility
13 for relief. See id.
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, any stay of
16 removal that the Court previously granted in this petition
17 is VACATED, and any pending motion for a stay of removal in
18 this petition is DISMISSED as moot. Any pending request for
19 oral argument in this petition is DENIED in accordance with
20 Federal Rule of Appellate Procedure 34(a)(2), and Second
21 Circuit Local Rule 34.1(b).
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
4
