Filed: Oct. 23, 2014
Latest Update: Mar. 02, 2020
Summary: 13-590 Lin v. Holder BIA A073 488 574 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
Summary: 13-590 Lin v. Holder BIA A073 488 574 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 ..
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13-590
Lin v. Holder
BIA
A073 488 574
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 23rd day of October, two thousand fourteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 DENNY CHIN,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 MAO HE LIN,
14 Petitioner,
15
16 v. 13-590
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Zhou Wang, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; William C. Peachey,
27 Assistant Director; Brianne Whelan
28 Cohen, Acting Senior Litigation
29 Counsel; Jonathan Robbins, Trial
30 Attorney, Office of Immigration
31 Litigation, United States Department
32 of Justice, 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 Mao He Lin, a native and citizen of the
6 People’s Republic of China, seeks review of a February 7,
7 2013, decision of the BIA denying his motion to reopen. In
8 re Mao He Lin, No. A073 488 574 (B.I.A. Feb. 7, 2013). 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, remaining mindful of the Supreme
13 Court’s admonition that such motions are “disfavored.” Ali
14 v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.
15 Doherty,
502 U.S. 314, 322-23 (1992)); Kaur v. BIA,
413 F.3d
16 232, 233 (2d Cir. 2005) (per curiam).
17 The BIA did not abuse its discretion in denying Lin’s
18 motion because he did not show his prima facie eligibility
19 for relief. See INS v. Abudu,
485 U.S. 94, 104-05 (1988) (a
20 movant’s failure to establish a prima facie case for the
21 underlying substantive relief sought is a proper ground on
22 which the BIA may deny a motion to reopen). In order to
2
1 show that he had a well-founded fear of persecution on
2 account of his practice of Falun Gong if he returned to
3 China, Lin submitted: a letter from a friend in China which
4 stated that Chinese police warned the friend that he and Lin
5 “must not engage in illegal activity any more”; an affidavit
6 from his brother, which stated that on the brother’s last
7 visit to China from the United States, the police gave him a
8 notice stating that they were aware Lin was illegally
9 “spread[ing] Falun Gong to the Chinese citizen” and was
10 required to surrender himself to the police if he returned
11 to China; and the police notice itself. The BIA reasonably
12 afforded this evidence minimal weight, as the police notice
13 was unsigned and unauthenticated, and the letter and
14 affidavit were from interested witnesses. See Xiao Ji Chen
15 v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006)
16 (the weight afforded to a movant’s evidence lies largely
17 within the discretion of the agency).
18 Furthermore, even taking these documents as proof that
19 the Chinese government is aware of Lin’s practice of Falun
20 Gong, the police notice did not specify what, if any,
21 penalties Lin would face as a result of his practice. As a
22 result, the evidence does not demonstrate that Lin might
3
1 face any harm rising to the level of persecution. See Jian
2 Hui Shao v. Mukasey, 546 F.3d 138, 172 (2d Cir. 2008)
3 (evidence of penalties or sanctions does not necessarily
4 signal a reasonable possibility of persecution);
5 Ramsameachire v. Ashcroft,
357 F.3d 169, 178 (2d Cir. 2004)
6 (an alien’s fear of future persecution must be objectively
7 reasonable).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of
10 removal that the Court previously granted in this petition
11 is VACATED, and any pending motion for a stay of removal in
12 this petition is DISMISSED as moot. Any pending request for
13 oral argument in this petition is DENIED in accordance with
14 Federal Rule of Appellate Procedure 34(a)(2), and Second
15 Circuit Local Rule 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
19
4
