Filed: Aug. 22, 2012
Latest Update: Mar. 26, 2017
Summary: 11-5228 Lin v. Holder BIA Zagzoug, I.J. A073 556 891 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 NO
Summary: 11-5228 Lin v. Holder BIA Zagzoug, I.J. A073 556 891 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 NOT..
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11-5228
Lin v. Holder
BIA
Zagzoug, I.J.
A073 556 891
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 August, two thousand twelve.
5
6 PRESENT:
7 RALPH K. WINTER,
8 JOSÉ A. CABRANES,
9 ROBERT D. SACK,
10 Circuit Judges.
11 _____________________________________
12
13 FANG LIN,
14 Petitioner,
15
16 v. 11-5228
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Lee Ratner, Law Offices of Michael
24 Brown, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Richard M. Evans, Assistant
28 Director; Virginia Lum, Trial
1 Attorney, Office of Immigration
2 Litigation, United States Department
3 of Justice, Washington, D.C.
4 UPON DUE CONSIDERATION of this petition for review of a
5 decision of the Board of Immigration Appeals (“BIA”), it is
6 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
7 review is DENIED.
8 Fang Lin, a native and citizen of the People’s Republic
9 of China, seeks review of a November 29, 2011, decision of
10 the BIA affirming the September 15, 2010, decision of
11 Immigration Judge (“IJ”) Randa Zagzoug, denying her motion
12 to reopen. In re Fang Lin, No. A073 556 891 (B.I.A. Nov.
13 29, 2011), aff’g No. A073 556 891 (Immig. Ct. N.Y. City
14 Sept. 15, 2010). We assume the parties’ familiarity with
15 the underlying facts and procedural history of this case.
16 Under the circumstances of this case, we have reviewed
17 the IJ’s decision as modified by the BIA’s decision. See
18 Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522
19 (2d Cir. 2005). We review the agency’s denial of a motion
20 to reopen for abuse of discretion, mindful of the Supreme
21 Court’s admonition that such motions are “disfavored.” Ali
22 v. Gonzales,
448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.
23 Doherty,
502 U.S. 314, 322-23 (1992)). It is well
2
1 established that the BIA may deny an alien’s motion to
2 reopen on the basis that the alien failed to demonstrate
3 prima facie eligibility for the relief sought, i.e., a
4 realistic chance that he will be able to establish
5 eligibility. See INS v. Abudu, 485 U.S. 94, 104-05 (1988)
6 (describing the failure to establish prima facie eligibility
7 for relief as one of “at least three independent grounds on
8 which the BIA may deny a motion to reopen”); Poradisova v.
9 Gonzales,
420 F.3d 70, 78 (2d Cir. 2005). “This requires
10 the alien to carry the ‘heavy burden’ of demonstrating that
11 the proffered new evidence would likely alter the result in
12 [his] case.” Jian Hui Shao v. Mukasey,
546 F.3d 138, 168
13 (2d Cir. 2008) (quoting Abudu, 485 U.S. at 110).
14 To establish eligibility for asylum and withholding of
15 removal, an applicant, such as Lin, who does not rely on
16 past persecution must demonstrate a well-founded fear of
17 future persecution. See 8 U.S.C. § 1101(a)(42); Kyaw Zwar
18 Tun v. INS,
445 F.3d 554, 564 (2d Cir. 2006). Here, the
19 agency did not abuse its discretion when it concluded that
20 Lin failed to demonstrate prima facie eligibility for relief
21 on the basis of her fear of future persecution, because she
22 failed to offer adequate evidence demonstrating that
3
1 officials in China were “aware of . . . or likely to become
2 aware of” her practice of Falun Gong in the United States.
3 Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008).
4 Lin argues that the notice of arrest she submitted with
5 her motion to reopen demonstrated that authorities in China
6 were aware of her practice of Falun Gong, and, thus,
7 established her prima facie eligibility for relief, and that
8 the BIA erred in according the notice minimal weight.
9 However, we afford particular deference to the BIA’s
10 decision to give limited weight to the notice, see Xiao Ji
11 Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 342 (2d Cir.
12 2006), and nothing in the record compels the conclusion that
13 the BIA erred in this respect. Although Lin argues that the
14 BIA improperly speculated that the notice was fraudulent,
15 the record reflects that, in assigning minimal weight to the
16 notice, the BIA, in addition to noting that the notice was
17 unsigned, observed that it did not identify the author, and
18 was unauthenticated in any manner, pointed to the State
19 Department’s 2007 Country Conditions Report, which stated
20 that documents from China, including notices from public
21 security authorities, and particularly those from the Fujian
22 Province, were “subject to widespread fabrication and
23 fraud.” Accordingly, absent “solid support” in the record
4
1 that her fear of persecution on the basis of her practice of
2 Falun Gong is objectively reasonable, Lin’s claim of future
3 persecution is “speculative at best.” Jian Xing Huang v.
4 U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005).
5 Further, the BIA did not abuse its discretion in
6 concluding that Lin’s decision to begin practicing Falun
7 Gong constituted a self-induced change in personal
8 circumstances that did not merit an exception to the time
9 and number limitations applicable to motions to reopen. See
10 Wei Guang Wang v. BIA,
437 F.3d 270, 274 (2d Cir. 2006)
11 (observing that a self-induced change in personal
12 circumstances cannot suffice to merit an exception to the
13 time and number limitations). Because Lin’s background
14 materials described only either the continuation of China’s
15 repression of Falun Gong or violence against Falun Gong
16 practitioners that occurred in the United States, the BIA
17 reasonably concluded that she failed to establish changed
18 conditions for Falun Gong practitioners in China. See
19 8 U.S.C. § 1229a(c)(7)(C)(ii) (providing that the time and
20 number limitations for filing a motion to reopen do not
21 apply if the motion is “based on changed country conditions
22 arising in the country of nationality or the country to
23 which removal has been ordered, if such evidence is material
5
1 and was not available and would not have been discovered or
2 presented at the previous proceedings.”); see also 8 C.F.R.
3 § 1003.2(c)(3)(ii) (same). Accordingly, the agency did not
4 abuse its discretion in denying Lin’s motion to reopen.
5 For the foregoing reasons, the petition for review is
6 DENIED. Having completed our review, any stay of removal
7 that the Court previously granted in this petition is
8 VACATED, and any pending motion for a stay of removal in
9 this petition is DISMISSED as moot. Any pending request for
10 oral argument in this petition is DENIED in accordance with
11 Federal Rule of Appellate Procedure 34(a)(2), and Second
12 Circuit Local Rule 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
15
16
6
