Ai Ming Zheng v. Holder

11-4413 BIA
Zheng v. Holder A088 380 465
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 28th day of September, two thousand twelve.
5
6 PRESENT:
7 JON O. NEWMAN,
8 RICHARD C. WESLEY,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 AI MING ZHENG,
14 Petitioner,
15
16 v. 11-4413
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Michael Brown, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Russell J. E.
27 Verby, Senior Litigation Counsel;
28 Dalin R. Holyoak, Trial Attorney,
29 Office of Immigration Litigation,
30 Civil Division, United States
31 Department of Justice, Washington,
32 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 Ai Ming Zheng, a native and citizen of the
6 People’s Republic of China, seeks review of a September 29,
7 2011, decision of the BIA denying his motion to reopen. In
8 re Ai Ming Zheng, No. A088 380 465 (B.I.A. Sept. 29, 2011).
9 We 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. See Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006) (per curiam). It is well established that
14 the BIA may deny an alien’s motion to reopen for failure to
15 demonstrate his prima facie eligibility for the underlying
16 relief sought. See INS v. Abudu, 485 U.S. 94, 104-05
17 (1988). To establish eligibility for asylum, an applicant,
18 like Zheng, who does not rely on past persecution must
19 demonstrate a well-founded fear of future persecution. See
20 Kyaw Zwar Tun v. U.S. INS, 445 F.3d 554, 564 (2d Cir. 2006);
21 8 U.S.C. § 1101(a)(42). “[T]o establish a well-founded fear
22 of persecution in the absence of any evidence of past
23 persecution, an alien must make some showing that
2
1 authorities in his country of nationality are either aware
2 of his activities or likely to become aware of his
3 activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 143
4 (2d Cir. 2008) (per curiam).
5 Zheng argues that he demonstrated that Chinese
6 authorities had become aware of his Falun Gong practice
7 based on a notice from his native village’s officials
8 threatening to punish him for his practice of Falun Gong in
9 the United States and a letter from his wife describing the
10 origin of that notice. However, the BIA reasonably declined
11 to credit the notice because it was: (1) unsigned and
12 unauthenticated; and (2) implausible considering the vague
13 claims of Zheng and his wife that unknown individuals
14 witnessed Zheng practicing Falun Gong in the United States,
15 returned to China, and informed his village’s government.
16 See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342
17 (2d Cir. 2006) (noting that the weight afforded to the
18 applicant’s evidence in immigration proceedings lies largely
19 within the discretion of the agency); Siewe v. Gonzales, 480
20 F.3d 160, 168-69 (2d Cir. 2007). The BIA also reasonably
21 declined to afford probative weight to the letter of Zheng’s
22 wife because it was not authenticated. Contrary to Zheng’s
23 arguments, the BIA was permitted to make factual findings
3
1 regarding whether the evidence he submitted with his motion
2 was previously unavailable and material, see 8 C.F.R.
3 § 1003.2(c)(1), and to assess the reliability of that
4 evidence, see Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec.
5 209, 214-15 n.5 (B.I.A. 2010), remanded on other grounds by
6 Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012).
7 Because Zheng failed to demonstrate that the Chinese
8 government was aware or would likely become aware of his
9 practice of Falun Gong, the BIA did not abuse its discretion
10 when it denied Zheng’s motion based on his failure to
11 demonstrate his prima facie eligibility for relief. See
12 Abudu, 485 U.S. at 104-05; Hongsheng Leng, 528 F.3d at 143.
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of
15 removal that the Court previously granted in this petition
16 is VACATED, and any pending motion for a stay of removal in
17 this petition is DISMISSED as moot. Any pending request for
18 oral argument in this petition is DENIED in accordance with
19 Federal Rule of Appellate Procedure 34(a)(2), and Second
20 Circuit Local Rule 34.1(b).
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
23
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