Ji Zu Shi v. Holder

11-569-ag
Shi v. Holder
BIA
A077 341 580
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 18th day of April, two thousand twelve.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 ROBERT D. SACK,
9 REENA RAGGI,
10 Circuit Judges.
11 _________________________________________
12
13 JI ZU SHI, A.K.A. HIROKO KAJI,
14 Petitioner,
15
16 v. 11-569-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Norman Kwai Wing Wong, New York, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Paul Fiorino, Senior
28 Litigation Counsel; Derek C. Julius,
29 Senior Litigation Counsel, 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 Ji Zu Shi, a native and citizen of the
6 People’s Republic of China, seeks review of a January 28,
7 2011, order of the BIA denying his motion to reopen. In re
8 Ji Zu Shi a.k.a. Hiroko Kaji, No. A077 341 580 (B.I.A. Jan.
9 28, 2011). We assume the parties’ familiarity with the
10 underlying facts and procedural history of 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). The BIA denied Shi’s motion on the grounds
14 that it was untimely and because he failed to demonstrate
15 his prima facie eligibility for asylum.
16 An individual ordinarily may file only one motion to
17 reopen and must do so within 90 days of the final
18 administrative decision. 8 U.S.C. § 1229a(c)(7)(A), (C);
19 8 C.F.R. § 1003.2(c)(2). Shi does not dispute that his
20 motion was untimely, but argues that he has demonstrated
21 materially changed country conditions to excuse the time
22 limitation. However, even if changed conditions are
2
1 demonstrated, a motion to reopen proceedings shall not be
2 granted unless it appears to the Board that a movant has
3 established a prima facie case for the underlying
4 substantive relief sought. See INS v. Abudu, 485 U.S. 94,
5 104-05 (1988). In order to establish prima facie
6 eligibility for relief, an “alien must show a realistic
7 chance that [he] will be able to establish eligibility.”
8 Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005). In
9 order to establish eligibility for asylum based on future
10 persecution, an applicant must show “that [he] subjectively
11 fears persecution and that this fear is objectively
12 reasonable.”. Ramsameachire v. Ashcroft, 357 F.3d 169, 178
13 (2d Cir. 2004). Accordingly, Shi was required to establish
14 a realistic chance that he would be able to demonstrate an
15 objectively reasonable fear of persecution if his
16 proceedings were reopened.
17 The BIA reasonably denied Shi’s motion to reopen,
18 concluding that he did not provide “sufficient evidence that
19 convincingly establishe[d] that he would be targeted for
20 harm on account of his religion.” An applicant can
21 demonstrate an objectively reasonable fear of persecution
22 “by offering evidence that [he] would be singled out
3
1 individually for persecution; and second, by proving the
2 existence of a pattern or practice in [his] country of
3 nationality of persecution of a group of persons similarly
4 situated to [him] and establishing [his] own inclusion in,
5 and identification with, such a group.” Hongsheng Leng v.
6 Mukasey, 528 F.3d 135, 142 (2d Cir. 2008). Shi failed to
7 argue before the BIA a pattern and practice of persecution
8 of returning Mormon Chinese nationals by the Chinese
9 government. Accordingly, we decline to consider this
10 argument which he raises before us in the first instance.
11 See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20
12 (2d Cir. 2007) (petitioners must have raised before the BIA
13 the specific issues they raise before this Court).
14 Having failed to exhaust a pattern and practice
15 argument, Shi was required to demonstrate a realistic chance
16 that he would be able to demonstrate that he would be
17 targeted for harm if returned to China. The BIA reasonably
18 concluded he failed to make such a showing. See Hongsheng
19 Leng, 528 F.3d at 142. The documents Shi submitted in
20 conjunction with his motion to reopen, including evidence of
21 membership in the Church of Jesus Christ of Latter-day
22 Saints (“LDS”), induction into the “Aaronic Priesthood,” and
4
1 photographs of himself outside of an LDS church, and
2 background material on the Chinese government’s treatment of
3 LDS members, failed to demonstrate whether the Chinese
4 government is aware of his conversion to the LDS or that it
5 would likely become aware of such conversion. Absent such a
6 showing, the BIA reasonably found that Shi failed to
7 establish prima facie eligibility for relief. The Board
8 thus did not abuse its discretion in denying Shi’s motion.
9 See Abudu, 485 U.S. 104-05.
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of
12 removal that the Court previously granted in this petition
13 is VACATED, and any pending motion for a stay of removal in
14 this petition is DISMISSED as moot. Any pending request for
15 oral argument in this petition is DENIED in accordance with
16 Federal Rule of Appellate Procedure 34(a)(2), and Second
17 Circuit Local Rule 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
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