Shi Hui Guan v. Lynch , 648 F. App'x 129 ( 2016 )

12-1772
Guan v. Lynch
BIA
A072 765 896
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 10th day of May, two thousand sixteen.
5
6 PRESENT:
7 ROBERT D. SACK,
8 GERARD E. LYNCH,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 SHI HUI GUAN,
14 Petitioner,
15
16 v. 12-1772
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Ning Ye, Flushing, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Blair T. O’Connor,
27 Assistant Director; Jane T.
28 Schaffner, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 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 is
4 DENIED.
5 Petitioner Shi Hui Guan, a native and citizen of the
6 People’s Republic of China, seeks review of a March 30, 2012,
7 decision of the BIA, denying his motion to reopen. In re Shi
8 Hui Guan, No. A072 765 896 (B.I.A. Mar. 30, 2012). We assume
9 the parties’ familiarity with the underlying facts and
10 procedural history in this case.
11 Our review is limited to the BIA’s denial of Guan’s motion
12 to reopen, and we do not consider his challenges to the agency’s
13 underlying adverse credibility determination. See Ke Zhen
14 Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-90 (2d Cir. 2001).
15 The applicable standards of review are well established. See
16 Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008).
17 The BIA did not abuse its discretion in denying Guan’s
18 motion to reopen because he failed to demonstrate his prima
19 facie eligibility for relief. See INS v. Abudu, 485 U.S. 94,
20 104 (1988). In light of the agency’s underlying adverse
21 credibility determination, the BIA reasonably declined to
22 credit Guan’s affidavit, see Qin Wen Zheng v. Gonzales, 500 F.3d
23 143, 147 (2d Cir. 2007), which was the only evidence provided
1 to support his assertion that he has practiced Falun Gong in
2 the United States since 1998 even though he claimed that he meets
3 weekly with other practitioners (who could have corroborated
4 his claims). Furthermore, the BIA did not err in finding that
5 Guan failed to establish his prima facie eligibility for relief
6 because he did not submit any evidence showing that the Chinese
7 government was aware of or likely to become aware of his
8 purported practice of Falun Gong. See Hongsheng Leng v.
9 Mukasey, 528 F.3d 135, 143 (2d Cir. 2008).
10 Accordingly, the BIA did not abuse its discretion in
11 denying Guan’s motion to reopen. See Abudu, 485 U.S. at 104-05;
12 see also Jian Hui Shao, 546 F.3d at 168. We do not consider
13 Guan’s remaining arguments as he did not exhaust them before
14 the BIA. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104,
15 119-22 (2d Cir. 2007).
16 For the foregoing reasons, the petition for review is
17 DENIED. As we have completed our review, the stay of removal
18 that the Court previously granted in this petition is VACATED.
19
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk