Yu Zhen Chen v. United States Department of Justice

09-1268-ag
Chen v. Holder
BIA
A078 692 239
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 22 nd day of September, two thousand ten.
PRESENT:
DENNIS JACOBS,
Chief Judge,
JON O. NEWMAN,
DENNY CHIN,
Circuit Judges.
______________________________________
YU ZHEN CHEN,
Petitioner,
09-1268-ag
v.
UNITED STATES DEPARTMENT OF JUSTICE,
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondents.
______________________________________
FOR PETITIONER: Yee Ling Poon, Robert Duk-Hwan Kim,
Law Offices of Yee Ling Poon, LLC, New
York, New York.
FOR RESPONDENTS: Tony West, Assistant Attorney General;
Ernesto H. Molina, Jr., Assistant
Director; Dana M. Camilleri, 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
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Petitioner, Yu Zhen Chen, a native and citizen of the
People’s Republic of China, seeks review of a February 27,
2009, order of the BIA denying her motion to reopen her
removal proceedings. In re Yu Zhen Chen, No. A078 692 239
(B.I.A. Feb. 27, 2009). 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. Ali v. Gonzales, 448 F.3d 515, 517 (2d
Cir. 2006). In denying Chen’s motion to reopen based on her
claimed fear of persecution on account of her husband’s pro-
democracy activities in the United States, the BIA reasonably
noted that Chen’s husband had been active in the pro-democracy
movement since December 2003, and that her claim, along with
much of the evidence she submitted in support of that claim,
could have been presented at her November 2005 hearing before
an IJ. See 8 C.F.R. § 1003.2(c)(1); see also INS v. Abudu,
485 U.S. 94, 104 (1988).
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Chen argues that the BIA ignored certain statements in
her husband’s affidavit post-dating her 2005 hearing, as well
as previously unavailable evidence that two prominent Chinese
dissidents were arrested and detained. However, a reasonable
fact-finder would not be compelled to conclude that the BIA
ignored any material evidence that she submitted. See Jian
Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008); see
also Xiao Ji Chen v. Dep’t of Justice, 471 F.3d 315, 337 n.17
(2d Cir. 2006). In fact, in addition to finding that much of
Chen’s evidence was previously available, the BIA reasonably
found that Chen’s evidence did not establish her prima facie
eligibility for relief based on her husband’s alleged pro-
democracy activities because her husband statements and the
arrest of two Chinese dissidents did not overcome an IJ’s
prior determination that Chen’s husband was not credible. See
Kaur v. BIA, 413 F.3d 232, 234 (2d Cir. 2005) (per curiam)
(holding that evidence submitted was not material because it
did not overcome the IJ’s prior adverse credibility
determination); see also Wensheng Yan v. Mukasey, 509 F.3d 63,
65 n.1 (2d Cir. 2007) (noting that “because the alleged
persecution of Yan’s wife was the predicate for his alleged
resistance to sterilization, the IJ’s implausibility finding
as to that spousal persecution reasonably extended to Yan’s
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personal resistance.”).
Moreover, we find speculative Chen’s argument that she
“established a realistic chance of establishing a reasonable
possibility of suffering persecution by witnessing the
persecution of her husband.” See Jian Xing Huang v. INS, 421
F.3d 125, 129 (2d Cir. 2005). Although an asylum applicant
cannot succeed on claims of past persecution or fear of future
persecution based solely on persecution inflicted on a family
member on account of the family member’s political opinion, we
have recognized that there may exist circumstances when harm
to an applicant’s family member in conjunction with other
factors may be sufficiently severe to amount to persecution.
See Tao Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007);
Jorge-Tzoc v. Gonzales, 435 F.3d 146, 150 (2d Cir. 2006). In
such cases, however, the “harm suffered by family members in
combination with other factors . . . would presumably only be
[persecution] where . . . the applicant not only shares (or is
perceived to share) the characteristic that motivated
persecutors to harm the family members, but was also within
the zone of risk when the family member was harmed, and
suffered some continuing hardship after the incident.” Tao
Jiang, 500 F.3d at 141-42 (citing Jorge-Tzoc, 435 F.3d at
150). Because Chen provided no evidence beyond general
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country conditions evidence regarding the treatment of
political dissidents in China and made no assertion that she
shares the alleged political opinion of her husband, she
failed to demonstrate her prima facie eligibility for relief
based on this claim. See Abudu, 485 U.S. at 104.
Accordingly, the BIA did not abuse its discretion in denying
Chen’s motion to reopen. See Kaur, 413 F.3d at 233.
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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