Filed: Apr. 21, 2011
Latest Update: Feb. 21, 2020
Summary: 10-2375-ag Huang v. Holder BIA A099 927 414 A099 927 415 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 TH
Summary: 10-2375-ag Huang v. Holder BIA A099 927 414 A099 927 415 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..
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10-2375-ag
Huang v. Holder
BIA
A099 927 414
A099 927 415
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 21st day of April, two thousand eleven.
PRESENT:
JOSÉ A. CABRANES,
REENA RAGGI,
GERARD E. LYNCH,
Circuit Judges.
______________________________________
HAI YING HUANG, QI XIANG CHEN,
Petitioners,
10-2375-ag
v. NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONERS: Gary J. Yerman, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Terri J. Scadron, Assistant
Director; Shahrzad Baghai, Attorney,
Office of Immigration Litigation,
United 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.
The Petitioners, Hai Ying Huang and Qi Xiang Chen,
natives and citizens of the People’s Republic of China, seek
review of a May 26, 2010, decision of the BIA denying their
motion to reopen their removal proceedings.1 In re Hai Ying
Huang, No. A099 927 414/415 (B.I.A. May 26, 2010). 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). When the BIA considers relevant evidence of
country conditions in evaluating a motion to reopen, we
review the BIA’s factual findings under the substantial
evidence standard. See Jian Hui Shao v. Mukasey,
546 F.3d
138, 169 (2d Cir. 2008).
We have articulated at least three permissible bases
upon which the BIA may deny a timely motion to reopen,
including: “(1) the movant’s failure to make a prima facie
1
For ease of reference, this order refers solely to
the lead petitioner, Hai Ying Huang.
2
case of eligibility for asylum; (2) the movant’s failure to
. . . articulate material, previously unavailable evidence
that would be introduced at a new hearing; or (3) a
determination that even if the applicant were eligible,
asylum would be denied in the exercise of discretion.” Li
Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 156 (2d
Cir. 2005).
The BIA reasonably determined that Huang failed to
establish her prima facie eligibility for relief because the
evidence she submitted did not demonstrate a sufficient
likelihood that she would face persecution on account of her
religious beliefs upon returning to China. Although Huang
argues that the BIA afforded insufficient weight to a letter
from her friend in China, in which the friend asserted that
she was beaten and detained for proselytizing and
distributing religious materials, the BIA reasonably
concluded that the letter was of “limited probative value”
because the author was engaged in activities that Huang did
not claim she intended to engage in and because the letter
did not contain any details of Huang’s friend’s detention or
beating.
Moreover, despite Huang’s claim that the BIA ignored
evidence in the state department reports that church members
3
are abused and harassed, the BIA explicitly considered that
evidence, but noted that the same reports indicated that
treatment of church members varied widely by region.
Indeed, the 2008 U.S. State Department report on human
rights practices for China indicates that “[i]n some regions
unregistered groups or house churches with hundreds of
members met openly, with the full knowledge of local
authorities, who characterized the meetings as informal
gatherings.” Bureau of Democracy, Human Rights, and Labor,
U.S. Dep’t of State, 2008 Human Rights Report: China
(includes Tibet, Hong Kong, and Macau), § 2.c (Feb. 25,
2009). Given that Huang provided no evidence of persecution
or harassment of Christians in her local province, the BIA’s
determination that Huang presented insufficient evidence
that she would be persecuted for her religious beliefs was
not an abuse of discretion. See Siewe v. Gonzales, 480 F.3d
160, 168 (2d Cir. 2007) (citing Healey v. Chelsea Res.,
Ltd.,
947 F.2d 611, 618 (2d Cir. 1991), for proposition that
“[w]here the evidence would support either of competing
inferences, the fact that this Court might have drawn one
inference does not entitle it to overturn the trial court's
choice of the other.” (internal quotation marks omitted)).
4
To the extent Huang argues that the BIA erred by
failing to take administrative notice of evidence not in the
record, it was under no obligation to do so. Cf. Hoxhallari
v. Gonzales, 468 F.3d 179, 186 n.5 (2d Cir. 2006) (noting
that the BIA may, as a matter of discretion, take notice of
changes in country conditions). Because substantial
evidence supports the BIA’s conclusion that Huang failed to
establish that Chinese officials persecute church members
from her locality on account of their religious beliefs, we
need not reach Huang’s remaining argument that the BIA erred
by failing to analyze whether Chinese officials were likely
to become aware of her religious conversion.
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
5
