Filed: Jan. 29, 2016
Latest Update: Mar. 02, 2020
Summary: 13-2533 Huang v. Lynch BIA Mulligan, IJ A087 468 210 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: 13-2533 Huang v. Lynch BIA Mulligan, IJ A087 468 210 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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13-2533
Huang v. Lynch
BIA
Mulligan, IJ
A087 468 210
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 29th day of January, two thousand sixteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 ROBERT D. SACK,
10 GERARD E. LYNCH,
11 Circuit Judges.
12 _____________________________________
13
14 ZERUI HUANG,
15 Petitioner,
16
17 v. 13-2533
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: John Chang, New York, New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Shelley R. Goad, Assistant
28 Director; Monica Antoun, Trial
29 Attorney, Civil Division, 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 Zerui Huang, a native and citizen of China,
6 seeks review of a June 21, 2013 decision of the BIA denying
7 her motion to reopen. In re Zerui Huang, No. A087 468 210
8 (B.I.A. June 21, 2013). We assume the parties’ familiarity
9 with the underlying facts and procedural history in this
10 case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion, mindful that such motions are
13 “disfavored.” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.
14 2006) (citing INS v. Doherty,
502 U.S. 314, 322-23 (1992)).
15 A motion to reopen “shall not be granted unless it
16 appears to the Board that evidence sought to be offered is
17 material and was not available and could not have been
18 discovered or presented at the former hearing.” 8 C.F.R.
19 § 1003.2(c)(1). “To prevail on the motion, the movant must
20 also establish prima facie eligibility for asylum, i.e., ‘a
21 realistic chance’ that he will be able to establish
22 eligibility.” Poradisova v. Gonzales,
420 F.3d 70, 78 (2d
23 Cir. 2005).
2
1 The BIA did not abuse its discretion in concluding that
2 Huang could have presented most of his submissions at his
3 merits hearing. Nor did the BIA abuse its discretion in
4 concluding that the remaining documents failed to make out
5 Huang’s prima facie eligibility for relief.
6 Huang was required to “make some showing that
7 authorities in his country of nationality are either aware
8 of his activities or likely to become aware of his
9 activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 143
10 (2d Cir. 2008). The only suggestion on that score was a
11 single unsubstantiated sentence in Huang’s motion to reopen:
12 “Mr. Huang was told by his parents that the church members
13 have to constantly change their gathering places in order to
14 avoid the government’s attention.” A motion to reopen must
15 “be supported by affidavits or other evidentiary material.”
16 8 C.F.R. § 1003.2(c)(1). “[T]he arguments of counsel are
17 not evidence.” Pretzantzin v. Holder,
736 F.3d 641, 651 (2d
18 Cir. 2013) (citing Matter of Ramirez–Sanchez, 17 I. & N.
19 Dec. 503, 506 (B.I.A. 1980)). The agency therefore did not
20 err in deeming the sentence in Huang’s brief “not competent
21 evidence” that the Chinese government will become aware of
22 Huang’s activities.
3
1 Huang also needed “to show a pattern or practice in the
2 home country of persecution of persons ‘similarly situated’
3 to [him].” Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir.
4 2013). Only three of Huang’s documents post-date his merits
5 hearing. Two of those documents reported on arrests after
6 an underground church in Beijing held Easter services
7 outdoors. Huang’s motion said nothing about this church or
8 any ties to Beijing generally. The third document describes
9 the Chinese government’s persecution of leading Christians
10 in 2012. Most of the stories involved prominent lawyers,
11 dissidents and church leaders. Huang never claimed to be
12 any of those. Two stories dealt with proselytizing
13 Christians. Huang’s motion papers said nothing about
14 proselytizing, either in the United States or China. Given
15 this record, the agency was within its discretion to
16 conclude that Huang failed to show that the Chinese
17 government has a pattern or practice of persecuting people
18 similarly situated to him.
19 For the foregoing reasons, the petition for review is
20 DENIED. As we have completed our review, the pending motion
21 for a stay of removal in this petition is DENIED as moot.
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
4
