Wan Zhen Zheng v. Holder

10-343-ag
Zheng v. Holder
BIA
A099 938 919
A099 938 920
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.
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 11th day of April, two thousand twelve.
PRESENT:
ROSEMARY S. POOLER,
BARRINGTON D. PARKER,
DENNY CHIN,
Circuit Judges.
_________________________________________
WAN ZHEN ZHENG, BIN CHEN,
Petitioners,
v. 10-343-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_________________________________________
FOR PETITIONERS: Richard Tarzia, Belle Mead, New Jersey.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Ernesto H. Molina, Jr., Assistant
Director; Jeffery R. Leist, Attorney,
Office of Immigration Litigation,
United States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DENIED.
Petitioners Wan Zhen Zheng, and her husband, Bin Chen,
natives and citizens of China, seek review of a January 6,
2010, decision of the BIA denying their motion to reopen. In
re Wan Zhen Zheng, Bin Chen, Nos. A099 938 919/920 (B.I.A.
Jan. 6, 2010). We assume the parties’ familiarity with the
underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d
Cir. 2005). As an initial matter, in their brief to this
Court, petitioners waive any challenge to the BIA’s denial of
their motion to reopen insofar as it was based on their family
planning claim. See Yueqing Zhang v. Gonzales, 426 F.3d 540,
541 n.1, 545 n.7 (2d Cir. 2005). Accordingly, the only issue
before us is petitioners’ challenge to the BIA’s denial of
their motion to reopen to pursue an application for asylum and
withholding of removal based on Zheng’s Christian faith.
The BIA did not abuse its discretion in denying reopening
based on petitioners’ failure to submit an application for
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relief with their motion to reopen. See 8 C.F.R.
§ 1003.2(c)(1) (“A motion to reopen proceedings for the
purpose of submitting an application for relief must be
accompanied by the appropriate application for relief.”).
The BIA also did not abuse its discretion in denying
petitioners’ motion to reopen based upon their failure to
establish prima facie eligibility for relief based on Zheng’s
religion. See INS v. Abudu, 485 U.S. 94, 104-05 (1988). In
this case, the BIA explicitly considered the relevant evidence
of country conditions and reasonably found that although
religious freedom was severely suppressed in certain regions
of China, such as Tibetan areas and the Xinjiang Uighur
Autonomous Region, membership in unregistered churches was
common throughout much of China with many groups allowed to
openly practice their religion without interference or harm.
Moreover, the BIA did not err in determining that an unsworn
letter from petitioners’ relative, claiming to have been
arrested and beaten for worshiping at an underground church in
Fujian Province, was insufficient to demonstrate their prima
facie eligibility for relief. See Jian Hui Shao v. Mukasey,
546 F.3d 138, 159-61, 171 (2d Cir. 2008).
For the foregoing reasons, the petition for review is
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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(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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