Hui Zheng v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-2783
___________
HUI ZHENG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(A099-928-034)
Immigration Judge: Honorable Margaret R. Reichenberg
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 1, 2011
Before: FUENTES, VANASKIE and NYGAARD, Circuit Judges
(Opinion filed: April 4, 2011)
___________
OPINION
___________
PER CURIAM.
Hui Zheng, a native and citizen of China, entered the United States in 2006
without being admitted or paroled. He applied for asylum, withholding of removal, and
Convention Against Torture (“CAT”) relief based on a claim that his wife had been
forced in 2003 to undergo an abortion in China. Zheng conceded his removability, and
1
an Immigration Judge (“IJ”) rejected his applications for relief from removal. On
November 9, 2009, the Board of Immigration Appeals (“BIA”) affirmed the IJ‟s decision
and dismissed Zheng‟s appeal.
Zheng did not petition for review of the BIA‟s final removal order. Instead, he
filed a “motion to reconsider and remand.” The BIA construed the filing as a timely
motion to reopen and denied it. It explained that, while Zheng‟s initial claim for relief
was predicated on China‟s population control policies, he now claims that he began
practicing Falun Gong in October 2008, and that he fears future harm in China for this
reason. Zheng submitted statements from himself and his sister-in-law in support of his
new claim, but the BIA found the statements “notable for their vagueness and lack of
relevant detail.” Further, while Zheng alleged that he had allowed an unidentified friend
of his wife who practiced Falun Gong to hide in their home in China at some unspecified
time in the past, the BIA observed that Zheng made no such allegation previously, and he
provided no evidence to corroborate the claim. Moreover, the BIA noted that Zheng
failed to submit any evidence, aside from his sister-in-law‟s generalized and brief
statement, to support his claim that he is a Falun Gong practitioner, and no evidence that
anyone in China is aware of his new found practice or would have the interest and means
to cause him harm. Concluding that Zheng failed to show the materiality of his claim, the
BIA refused to reopen the case. Zheng timely filed a petition for review in this Court.
We have jurisdiction under 8 U.S.C. § 1252(a)(1), limited to a review of the order
2
denying Zheng‟s motion to reopen.1 “As a general rule, motions to reopen are granted
only under compelling circumstances.” Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir.
2004). Our review of the denial of such a motion is for abuse of discretion, “mindful of
the „broad‟ deference that the Supreme Court would have us afford.” Lu v. Ashcroft, 259
F.3d 127, 131 (3d Cir. 2001). We will not disturb the BIA‟s decision unless Zheng
shows that it was arbitrary, irrational, or contrary to law. See Shardar v. Att‟y Gen., 503
F.3d 308, 311 (3d Cir. 2007).
An alien pursuing a motion to reopen bears the burden to show that the “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). “The BIA may deny a
motion to reopen if it determines that (1) the alien has not established a prima facie case
for the relief sought; (2) the alien has not introduced previously unavailable, material
evidence; or (3) in the case of discretionary relief (such as asylum), the alien would not
be entitled to relief even if the motion was granted.” Huang v. Att‟y Gen., 620 F.3d 372,
389 (3d Cir. 2010) (quotation marks omitted).
Zheng argues that the BIA erred in failing to give sufficient weight to his and his
sister-in-law‟s statements. He contends that the BIA should have accepted the allegations
in those statements as true for purposes of ruling on whether to reopen, and had the BIA
done so, it would have concluded that Zheng states a prima facie case of his eligibility for
relief from removal. We discern no error.
1
Zheng does not take issue with the BIA‟s decision to construe his filing as a motion
to reopen.
3
To establish a prima facie case, an alien must produce objective evidence showing
a reasonable likelihood that he can prove an entitlement to relief from removal. Shardar,
503 F.3d at 313. “For an asylum claim, this means merely showing a realistic chance that
the petitioner can at a later time establish that asylum should be granted.” Id. (quotation
marks omitted).
It can be assumed from the factual allegations in Zheng and his sister-in-law‟s
statements that Zheng may be able to show that he is now a practitioner of Falun Gong,
and that he fears returning to China for that reason. But to be eligible for asylum, Zheng
would need to establish a “well-founded” fear of persecution, a showing that requires not
only evidence of his genuine subjective fear that he would be persecuted, but also an
objective showing that “a reasonable person in the alien‟s circumstances would fear
persecution if returned to the country in question.” Wong v. Att‟y Gen., 539 F.3d 225,
232 (3d Cir. 2008) (quotation marks omitted). The objective standard is satisfied either
by showing that the alien would be individually singled out for persecution, or that there
is a pattern or practice of persecution on a protected ground of a group of persons
similarly situated to the alien. Id.Zheng‟s motion to reopen is not supported by evidence suggesting that he can
make an objective showing of a well-founded fear. As the BIA noted, Zheng does not
claim that anyone in China is aware of his newly adopted Falun Gong practice or would
have the interest and means to single him out for harm. In addition, while Zheng refers in
his brief to “the Chinese government‟s undisputed record of persecuting Falun Gong
practitioners,” Petitioners‟ Br. at 9, evidence of that “undisputed record” is not attached
4
to the motion to reopen, and it cannot be found in the record before this Court.
Other than his and his sister-in-law‟s statements, Zheng attached to the motion to
reopen copies of four documents dated in 2003 and 2004. These documents, which have
the appearance of press releases, reflect that they were produced by the “Falun Data
Information Center” and posted on the “faluninfo.net” website. Zheng points to two
statements from these documents as “objective” evidence that he should fear persecution
in China. First, a document dated April 4, 2003, makes reference to the 2002 State
Department Human Rights Report on China. This document notes that the 2002 Report
“highlighted the widespread practice of torturing Falun Gong practitioners in police
custody.” JA at 30; Petitioner‟s Br. at 12. Second, Zheng points to a statement in the
same April 4, 2003, document that “[s]ystematic, state-ordered forceful denial of freedom
of belief, peaceful assembly and association for Falun Gong practitioners remained
severe in China, as the U.S. report indicated.” JA at 32; Petitioners‟ Br. at 12.
This evidence is inadequate for several reasons. First, the statements that Zheng
cites are purportedly based on a Country Report from 2002. Zheng filed his motion to
reopen seven years later, in 2009. It is not unreasonable to expect that an alien seeking to
reopen his case based on a fear of future persecution would support his motion with
current information about conditions in the country at issue. Second, even if statements
from the outdated 2002 Report are to be considered, Zheng failed to attach a copy of the
Report itself to the motion to reopen; what he presents are mere second-hand accounts of
what might, or might not, be reflected in the 2002 Report. Third, the statement that there
is torture in China of Falun Gong practitioners “in police custody” is immaterial because
5
Zheng has not supported his motion with any objective evidence suggesting that he might
be taken into police custody. Fourth, the statement that there is “systematic, state-ordered
forceful denial of freedom of belief, peaceful assembly and association for Falun Gong
practitioners” is conclusory and vague, and it does not indicate that Falun Gong
practitioners are subjected to treatment rising to the level of persecution or torture.
We have explained that an alien may demonstrate an objective basis for a well-
founded fear “by documentary or expert evidence about the conditions in a given
country.” Lusingo v. Gonzales, 420 F.3d 193, 199 (3d Cir. 2005). Zheng offered the
BIA no such evidence. The BIA, therefore, did not act arbitrarily, irrationally, or
contrary to law in concluding that the evidence Zheng submitted was not “material,” 8
C.F.R. § 1003.2(c)(1), and it is clear that Zheng did not establish prima facie eligibility
for relief from removal based on his Falun Gong practice. It follows that the BIA did not
abuse its discretion in denying the motion to reopen. See Huang, 620 F.3d at 389-90.
We have considered Zheng‟s remaining arguments but conclude that they are
without merit. We will deny the petition for review.
6