Bin Chen v. Holder ( 2011 )

10-1165-ag
Chen v. Holder
BIA
A076 627 827
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
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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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 22nd day of August, two thousand eleven.
PRESENT:
JON O. NEWMAN,
RICHARD C. WESLEY,
PETER W. HALL,
Circuit Judges.
_____________________________________
BIN CHEN, also known as MEIQIN CHEN,
Petitioner,
v. 10-1165-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: WaiSim M. Cheung, New York, New
York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Anthony W. Norwood, Senior
Litigation Counsel; Colin J. Tucker,
Trial Attorney, Office of
Immigration Litigation, Civil
Division, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.
Bin Chen, a native and citizen of China, seeks review
of a March 9, 2010, decision of the BIA denying her motion
to reopen. In re Bin Chen, No. A076 627 827 (B.I.A. Mar. 9,
2010). We assume the parties’ familiarity with the
underlying facts and procedural history of this case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
Cir. 2006). Because Chen’s May 2009 motion was filed within
90 days of the issuance of the BIA’s February 2009 final
decision following reopening and remand, Chen was not
required to demonstrate changed conditions in China.
See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
§ 1003.2(c)(2),(c)(3)(ii). Although the BIA stated that
Chen sought reopening “based on a claim of changed country
conditions,” it did not abuse its discretion in denying
Chen’s motion, as it concluded not that Chen failed to
demonstrate changed country conditions, but that Chen failed
to establish her prima facie eligibility for relief.
Chen’s argument that she established her prima facie
eligibility for relief based on the birth of her U.S.
citizen children is largely foreclosed by our decision in
Jian Hui Shao v. Mukasey, 546 F.3d 138, 172-73 (2d Cir.
2008) (finding no error in the BIA’s determination that the
country conditions evidence related to Fujian Province did
not demonstrate a realistic chance that the petitioner would
be forcibly sterilized for violating the family planning
policy with the birth of her U.S. citizen children, despite
isolated reports of forced sterilization). Chen’s
contention that the BIA erred in ignoring “critical” new
evidence, particularly a special administrative reply notice
from the LangQi Town Family Planning Office addressed to
Chen and the 2005 Fujian Family Planning Rules and Practice
Publication Manual, is unavailing. The BIA did not err in
according little weight to these materials, purporting to be
from Chinese authorities, as they were not authenticated,
appeared to have been obtained for the purpose of filing to
reopen, and did not identify their author(s). See Shunfu Li
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v. Mukasey, 529 F.3d 141, 149 (2d Cir. 2008) (although
agency may not reject document solely for lack of
authentication pursuant to 8 C.F.R. § 287.6, the agency has
“considerable flexibility in determining the authenticity of
. . . documents from the totality of the evidence”); Xiao Ji
Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.
2006). Moreover, neither the notice nor the Manual were
material to Chen’s claimed fear of forced sterilization,
because their references to the family planning policy’s
mandatory sterilization requirement did not demonstrate that
such sterilizations are performed by force. See Jian Hui
Shao, 546 F.3d at 165, 172.
Chen further asserts that the BIA applied the wrong
burden of proof in assessing her religion-based claim by
requiring her to establish her ultimate eligibility for
relief as opposed to her prima facie eligibility. However,
the BIA’s statement that the evidence was insufficient to
demonstrate she would be subjected to persecution does not
mean that the BIA required her to establish that she would
definitely be subjected to persecution. It means simply
that she was required to show she faced a risk of such
punishment. See Guan Shan Liao v. U.S. Dep’t of Justice,
293 F.3d 61, 68-69 (2d Cir. 2002) (concluding that the BIA’s
language that an applicant had not shown “that he would be
subject to persecution on his return to China” did not
demonstrate that the BIA held the applicant to a higher
burden of proof than the well-founded fear standard, but
“simply fault[ed] the applicant for failing to show that any
of [his] actions would even potentially subject [him] to
persecution upon his return to China.”).
In addition, the BIA reasonably concluded that Chen’s
evidence failed to establish her prima facie eligibility for
relief based on her practice of Christianity. While Chen’s
evidence demonstrates that there have been reports of the
detention and harassment of some leaders of unregistered
churches, the evidence establishes that China currently
allows the practice of religion in Christian churches and
that, in some parts of the country, unregistered Christian
groups are permitted to meet without registering.
Because the BIA considered the record evidence and
reasonably determined that Chen failed to present sufficient
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reliable evidence demonstrating her prima facie eligibility
for relief on either ground asserted, the BIA did not abuse
its discretion in denying Chen’s motion to reopen. See INS
v. Abudu, 485 U.S. 94, 104-05 (1988) (movant’s failure to
establish prima facie case for relief sought is proper
ground on which BIA may deny motion to reopen); see also
Jian Hui Shao, 546 F.3d at 171.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
4