Filed: Apr. 04, 2012
Latest Update: Feb. 22, 2020
Summary: 11-1978-ag Zhang v. Holder BIA A097 966 034 A070 902 978 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: 11-1978-ag Zhang v. Holder BIA A097 966 034 A070 902 978 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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11-1978-ag
Zhang v. Holder
BIA
A097 966 034
A070 902 978
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 4th day of April, two thousand twelve.
5
6 PRESENT:
7 ROBERT D. SACK,
8 RICHARD C. WESLEY,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 CHU DUAN ZHANG, XIN TAN YU,
14 Petitioners,
15
16 v. 11-1978-ag
17 NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Scott E. Bratton, New York, New
25 York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Richard M. Evans, Assistant
29 Director; Andrew Oliveira, Trial
1 Attorney, Civil Division, Office of
2 Immigration Litigation, U.S.
3 Department of Justice, Washington,
4 D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 decision of the Board of Immigration Appeals (“BIA”), it is
8 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
9 review is DENIED.
10 Petitioners Chu Duan Zhang and Xin Tan Yu (“Zhang”),
11 natives and citizens of the People’s Republic of China, seek
12 review of the April 26, 2011, order of the BIA denying their
13 motion to reopen. In re Chu Duan Zhang, Xin Tan Yu, Nos.
14 A097 966 034/A070 902 978 (B.I.A. Apr. 26, 2011). We assume
15 the parties’ familiarity with the underlying facts and
16 procedural history of the case.
17 We review the BIA’s denial of a motion to reopen for
18 abuse of discretion. Kaur v. BIA, 413 F.3d 232, 233 (2d
19 Cir. 2005) (per curiam). “A motion to reopen proceedings
20 shall not be granted unless it appears to the Board that
21 evidence sought to be offered is material and was not
22 available and could not have been discovered or presented at
23 the former hearing.” 8 C.F.R. § 1003.2(c)(1) (2005); see
24 also 8. U.S.C. § 1229a(c)(7). Failure to offer such
25 evidence is, therefore, a proper ground on which the BIA may
2
1 deny a motion to reopen, as is the movant’s failure to
2 establish a prima facie case for the underlying substantive
3 relief sought. See INS v. Abudu, 485 U.S. 94, 104-05
4 (1988).
5 In support of her claim that she established a prima
6 facie case, Zhang argues that the BIA erred in declining to
7 afford probative weight to a village committee notice and
8 affidavit from her mother allegedly showing that Chinese
9 officials are aware of Zhang’s Falun Gong practice. She
10 avers that because she was found credible in her underlying
11 proceedings, and because the village committee notice she
12 submitted was not obtained in preparation for her
13 proceedings but when Chinese officials came to her mother’s
14 house, her evidence should have been credited. These
15 arguments are unavailing.
16 The BIA’s rejection of the village committee notice was
17 not in error because the notice was not authenticated “in
18 any manner.” See Shunfu Li v. Mukasey,
529 F.3d 141, 149-50
19 (2d Cir. 2008). The BIA’s decision had nothing to do with
20 its finding that Zhang was credible, and finding Zhang
21 credible but giving the notice limited probative value are
22 not mutually exclusive, which makes Zhang’s attempts to
3
1 distinguish her case from Qin Wen Zheng v. Gonzales, 500
2 F.3d 143 (2d Cir. 2007) beside the point. Furthermore,
3 Zhang’s argument that the notice she submitted was unlike
4 that found to be properly afforded minimal weight in Matter
5 of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209 (BIA 2010) is not
6 persuasive because the evidentiary concerns associated with
7 an unsigned and unauthenticated notice are not obviated by
8 the notice’s contemporaneity. See Shunfu
Li, 529 F.3d at
9 149-50; see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471
10 F.3d 315, 342 (2d Cir. 2006). We afford considerable
11 flexibility to the BIA to determine how unauthenticated
12 documents can impact and alien’s claim and find no abuse of
13 the flexibility and discretion here. We also find Zhang’s
14 challenge to the BIA’s decision to afford her mother’s
15 affidavit minimal weight similarly unpersuasive. See Li Hua
16 Lin v. U.S. Dep’t of Justice,
453 F.3d 99, 104 (2d Cir.
17 2006).
18 Moreover, none of the additional evidence Zhang
19 submitted, including photographs of herself and her husband
20 practicing Falun Gong and engaging in a Falun Gong
21 demonstration, the 2007 Department of State profile on
22 China, and various news reports of China’s treatment of
4
1 Falun Gong practitioners established the Chinese
2 government’s awareness of her practice of Falun Gong. See
3 Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008);
4 Jian Hui Shao v. Mukasey,
546 F.3d 138, 162 (2d Cir. 2008).
5 For the foregoing reasons, the petition for review is
6 DENIED.
7 FOR THE COURT:
8 Catherine O'Hagan Wolfe, Clerk
9
10
5
