Filed: Feb. 22, 2012
Latest Update: Feb. 22, 2020
Summary: 10-4274-ag Gao v. Holder BIA A094 824 879 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
Summary: 10-4274-ag Gao v. Holder BIA A094 824 879 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 “SUMM..
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10-4274-ag
Gao v. Holder
BIA
A094 824 879
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 22nd day of February, two thousand twelve.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _________________________________________
12
13 HUIQUAN GAO
14 Petitioner,
15
16 v. 10-4274-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, New York.
24
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Blair T. O’Connor,
28 Assistant Director; Joseph D. Hardy,
29 Jr., Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DENIED.
5 Petitioner Huiquan Gao, a native and citizen of the
6 People’s Republic of China, seeks review of a September 27,
7 2010, order of the BIA denying his motion to reopen. In re
8 Huiquan Gao, No. A094 824 879 (B.I.A. Sept. 27, 2010). We
9 assume the parties’ familiarity with the underlying facts
10 and procedural history in this case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion, Ali v. Gonzales, 448 F.3d 515, 517 (2d
13 Cir. 2006), mindful of the Supreme Court’s admonition that
14 motions to reopen are “disfavored,” Maghradze v. Gonzales,
15
462 F.3d 150, 154 (2d Cir. 2006). Here, the BIA did not
16 abuse its discretion in denying Gao’s motion to reopen based
17 on his failure to establish his prima facie eligibility for
18 relief. See INS v. Abudu,
485 U.S. 94, 104 (1988).
19 In order to establish prima facie eligibility for
20 relief, an alien must show “a realistic chance that he will
21 be able to establish eligibility.” Poradisova v. Gonzales,
22
420 F.3d 70, 78 (2d Cir. 2005)(internal quotation marks
23 omitted). In order to establish eligibility for asylum
24 based on future persecution, an applicant must show “that he
2
1 subjectively fears persecution and . . . that his fear is
2 objectively reasonable.” Ramsameachire v. Ashcroft, 357 F.3d
3 169, 178 (2d Cir. 2004). “[T]o establish a well-founded
4 fear of persecution in the absence of any evidence of past
5 persecution, an alien must make some showing that
6 authorities in his country of nationality are either aware
7 of his activities or likely to become aware of his
8 activities.” Hongsheng Leng v. Mukasey,
528 F.3d 135, 143
9 (2d Cir. 2008).
10 The BIA reasonably denied Gao’s motion to reopen based
11 on the absence of evidence that anyone in China is aware of
12 his reported recent actions, or that anyone there has the
13 interest, means and ability to harm him as a result. “A
14 motion to reopen proceedings shall not be granted unless it
15 appears to the Board that evidence sought to be offered is
16 material and was not available and could not have been
17 discovered or presented at the former hearing.” 8 C.F.R.
18 § 1003.2(c)(1).
19 The BIA reasonably found that the documents Gao
20 submitted in conjunction with his motion to reopen,
21 including evidence of his membership in the River of Life
22 Christian Church, various country conditions reports
23 regarding the persecution of Christians in China, and two
3
1 affidavits whose authors claimed to have been penalized for
2 their participation in an unidentified house church in
3 China, either did not constitute previously unavailable
4 evidence, or failed to demonstrate that the Chinese
5 government is aware of his activities as a Christian or that
6 it would likely become aware of such activities. Moreover,
7 the country conditions evidence indicated that the Chinese
8 government often allowed underground churches to meet.
9 Accordingly, the Board did not abuse its discretion in
10 denying Gao’s motion. See Abudu, 485 U.S. 104-05.
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
4
