Chen v. Whitaker

11-3790 (L) Chen v. Whitaker BIA Gordon-Uruakpa, IJ A089 254 392 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 TO 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 Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 14th day of December, two thousand 5 eighteen. [6] 7 PRESENT: 8 JON O. NEWMAN, 9 DENNIS JACOBS, 10 PIERRE N. LEVAL, 11 Circuit Judges. 12 _____________________________________ [13] 14 XIAO YING CHEN, 15 Petitioner, 16 11-3790(L), 17 v. 12-2841(Con) 18 NAC [19] 20 MATTHEW G. WHITAKER, ACTING 21 UNITED STATES ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ [24] 25 FOR PETITIONER: Richard Tarzia, Belle Mead, NJ. [1] 04122018-1 1 FOR RESPONDENT: Benjamin C. Mizer, Principal 2 Deputy Assistant Attorney General; 3 Carl McIntyre, Assistant Director; 4 Brooke M. Maurer, Trial Attorney, 5 Office of Immigration Litigation, 6 United States Department of 7 Justice, Washington, DC. [8] 9 UPON DUE CONSIDERATION of these petitions for review of 10 two Board of Immigration Appeals (“BIA”) decisions, it is 11 hereby ORDERED, ADJUDGED, AND DECREED that the petitions for 12 review are DENIED. 13 Petitioner Xiao Ying Chen, a native and citizen of the 14 People’s Republic of China, seeks review of (1) an August 25, 15 2011, BIA decision that affirmed the January 7, 2010, decision 16 of an Immigration Judge (“IJ”) denying asylum, withholding of 17 removal, and relief under the Convention Against Torture 18 (“CAT”), In re Xiao Ying Chen, No. A089 254 392 (B.I.A. Aug. 19 25, 2011), aff’g No. A089 254 392 (Immig. Ct. N.Y. City Jan. 20 7, 2010), and (2) a June 26, 2012, BIA decision denying Chen’s 21 motion to reopen, In re Xiao Ying Chen, No. A089 254 392 22 (B.I.A. June 26, 2012). We assume the parties’ familiarity 23 with the underlying facts and procedural history in this case. 24 Under these circumstances, we have reviewed both the IJ’s 25 and the BIA’s opinions “for the sake of completeness.” [2] 04122018-1 1 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d 2 Cir. 2006). The applicable standards of review are well 3 established. See Jian Hui Shao v. Mukasey, 546 F.3d 138 , 4 157-58, 168-69 (2d Cir. 2008). 5 I. Docket 11-3790(L), Order of Removal 6 Chen applied for asylum, withholding of removal, and CAT 7 relief, asserting a fear of persecution based on the birth of 8 her children in the United States in violation of China’s 9 population control program. As an initial matter, contrary 10 to Chen’s contention, the agency applied the correct burden 11 when considering her application. See Guan Shan Liao v. U.S. 12 Dep’t of Justice, 293 F.3d 61 , 68-69 (2d Cir. 2002); Jian Hui 13 Shao, 546 F.3d at 156 . 14 For largely the same reasons as set forth in Jian Hui 15 Shao, we find no error in the agency’s determination that she 16 failed to satisfy her burden for asylum, withholding of 17 removal, and CAT relief. See 546 F.3d at 158-67 ; see also 18 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). 19 II. Docket 12-2841(Con), Motion to Reopen 20 Chen moved to reopen her removal proceedings to present 21 new evidence to support her claimed fear of persecution under [3] 04122018-1 1 China’s population control program and to apply for relief 2 based on her fear of persecution on account of her practice 3 of Falun Gong. It is undisputed that Chen’s motion to reopen 4 was untimely filed more than 90 days after her removal order 5 became final. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. 6 § 1003.2(c)(2). The time limitation does not apply if the 7 motion is to reopen proceedings in order to apply for asylum 8 “based on changed country conditions arising in the country 9 of nationality or the country to which removal has been 10 ordered, if such evidence is material and was not available 11 and would not have been discovered or presented at the 12 previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see 13 also 8 C.F.R. § 1003.2 (c)(3)(ii). 14 We find no error in the BIA’s determination that Chen’s 15 evidence failed to demonstrate a material change related to 16 the population control program as required to excuse her 17 untimely filing. See Jian Hui Shao, 546 F.3d at 168-73 . Nor 18 did the BIA err in its alternative determination that Chen’s 19 new evidence in support of her family planning claim was 20 previously available. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 21 see also Jian Hui Shao, 546 F.3d at 168 . [4] 04122018-1 1 As to Chen’s Falun Gong claim, the BIA did not err in 2 finding that the evidence, including the 2010 U.S. State 3 Department’s International Religious Freedom Report, did not 4 demonstrate a change in the treatment of Falun Gong 5 practitioners. The evidence reflects that the Chinese 6 government has mistreated Falun Gong practitioners since 7 banning the practice in 1999, more than a decade before Chen’s 8 hearing. In re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 9 2007) (“In determining whether evidence accompanying a motion 10 to reopen demonstrates a material change in country 11 conditions that would justify reopening, [the BIA] compare[s] 12 the evidence of country conditions submitted with the motion 13 to those that existed at the time of the merits hearing 14 below.”). Alternatively, the BIA did not err in finding that 15 Chen failed to establish her prima facie eligibility for 16 relief: Chen did not submit any evidence that the Chinese 17 government is aware of or likely to become aware of her 18 practice. See Jian Hui Shao, 546 F.3d at 168 (recognizing 19 that the movant is required to establish a prima facie case 20 for the underlying relief sought); see also Hongsheng Leng v. 21 Mukasey, 528 F.3d 135, 143 (2d Cir. 2008) (“[T]o establish a [5] 04122018-1 1 well-founded fear of persecution in the absence of any 2 evidence of past persecution, an alien must make some showing 3 that authorities in h[er] country of nationality are either 4 aware of h[er] activities or likely to become aware of h[er] 5 activities”). 6 For the foregoing reasons, the petitions for review are 7 DENIED. 8 FOR THE COURT: 9 Catherine O’Hagan Wolfe 10 Clerk of Court [6] 04122018-1