Hong Chen v. Holder ( 2012 )

11-4010
Chen v. Holder
BIA
A078 691 807
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 24th day of July, two thousand twelve.
PRESENT:
JON O. NEWMAN,
RICHARD C. WESLEY,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
HONG CHEN,
Petitioner,
v. 11-4010
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Hong Chen, pro se.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Greg D. Mack,
Senior Litigation Counsel; Colin J.
Tucker, Trial Attorney, Office of
Immigration Litigation, 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.
Hong Chen, a native and citizen of the People’s
Republic of China, seeks review of a September 14, 2011,
order of the BIA denying his motion to reopen. Hong Chen,
No. A078 691 807 (B.I.A. Sept. 14, 2011). 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, mindful of the Supreme Court’s
admonition that such motions are “disfavored.” Ali v.
Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (per curiam)
(quoting INS v. Doherty, 502 U.S. 314, 323 (1992)(quotation
marks omitted)). “A motion to reopen proceedings shall not
be granted unless it appears to the Board that evidence
sought to be offered is material and was not available and
could not have been discovered or presented at the former
hearing . . . .” 8 C.F.R. § 1003.2(c)(1); Norani v.
Gonzales, 451 F.3d 292, 294 & n.3 (2d Cir. 2006) (per
curiam) (looking to the date on which the IJ closed the
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hearing as the date before which the evidence must have been
unavailable, undiscoverable, or unpresentable). Failure to
offer such evidence is, therefore, a proper ground on which
the BIA may deny a motion to reopen, as is the movant’s
failure to establish a prima facie case for the underlying
substantive relief sought. See INS v. Abudu, 485 U.S. 94,
104-05 (1988).
In this case, the BIA did not abuse its discretion in
denying Chen’s motion to reopen. Although Chen attempted to
rehabilitate the inconsistency in his prior testimony
regarding his 2001 attempt to gain admission to the United
States, he failed to demonstrate that his explanation was
based on evidence that was both new and unavailable at the
time of his November 2008 hearing. See Norani, 451 F.3d at294 & n.3; 8 C.F.R. § 1003.2(c)(1).
Further, the agency reasonably determined that Chen
failed to demonstrate that the evidence he submitted with
his motion to reopen regarding his health condition would
change the outcome of his proceedings. See Matter of
Coehlo, 20 I. & N. Dec. 464, 473 (BIA 1992). The letter
from Chen’s physician in China was inconsistent with his
testimony and the evidence he had previously submitted in
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support of his application regarding the physician’s
diagnosis of his condition. Because the agency could
reasonably rely on these inconsistencies to find that Chen
was not credible, see 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu
Xia Lin v. Mukasey, 534 F.3d 162, 163-64 (2d Cir. 2008) (per
curiam), the BIA did not abuse its discretion in concluding
that Chen failed to demonstrate that the new evidence
regarding his medical treatment in China would have changed
the outcome in his case.
Further, the BIA did not abuse its discretion in
concluding that Chen failed to demonstrate prima facie
eligibility for asylum based on his fear of forcible
sterilization in China. The BIA reasonably concluded that
Chen’s claim, based on his fiancée’s pregnancy with their
first child and their intent to have more children, absent
further evidence, was too speculative to merit relief. See
Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir.
2005) (per curiam) (noting that, absent “solid support” in
the record that his fear is objectively reasonable, an
alien’s claim that he fears future persecution is
“speculative at best”).
Finally, to the extent that Chen’s argues that the BIA
erred in not specifically addressing his withholding of
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removal and CAT relief on the basis of his fear of
sterilization, we decline to remand. Given Chen’s failure
to satisfy the standard for asylum, and because his claims
for withholding of removal and CAT relief were based on the
same factual predicate as his asylum claim, it necessarily
follows that he failed to satisfy the higher burden of proof
for withholding of removal and CAT relief. See 8 C.F.R.
§ 1208.16(b); Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
2006). Accordingly, remand would be futile. Cf. Xiao Ji
Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 335 (2d Cir.
2006).
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
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