Zhu v. Garland

20-2217 Zhu v. Garland BIA A201 014 833 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 Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 20th day of September, two thousand twenty-two. [5] 6 PRESENT: 7 GUIDO CALABRESI, 8 MICHAEL H. PARK, 9 ALISON J. NATHAN, 10 Circuit Judges. 11 _____________________________________ [12] 13 HUILIN ZHU, 14 Petitioner, [15] 16 v. 20-2217 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ [22] 23 FOR PETITIONER: Zhen Liang Li, Law Offices of 24 Zhen Liang Li, New York, NY. [25] 26 FOR RESPONDENT: Brian Boynton, Acting Assistant 27 Attorney General; Greg D. Mack, 28 Senior Litigation Counsel; 29 Madeline Henley, Trial Attorney, 30 Office of Immigration Litigation, 31 United States Department of 32 Justice, Washington, DC. 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 Huilin Zhu, a native and citizen of the 6 People’s Republic of China, seeks review of a June 15, 2020, 7 decision of the BIA denying her motion to reopen. In re 8 Huilin Zhu, No. A 201 014 833 (B.I.A. June 15, 2020). We 9 assume the parties’ familiarity with the underlying facts and 10 procedural history. 11 We review the BIA’s denial of a motion to reopen for 12 abuse of discretion. Jian Hui Shao v. Mukasey, 546 F.3d 138 , 13 168-69 (2d Cir. 2008). The BIA may deny a motion to reopen 14 if “the movant has not established a prima facie case for the 15 underlying substantive relief sought.” INS v. Abudu, 485 16 U.S. 94, 104 (1988). Accordingly, contrary to Zhu’s 17 position, the BIA did not engage in improper factfinding by 18 considering her prima facie eligibility for adjustment of 19 status. 20 Zhu sought reopening to apply to adjust to lawful 21 permanent resident status based on her marriage to a U.S. [2] 1 citizen after the entry of her removal order. The BIA did 2 not abuse its discretion in denying Zhu’s motion to reopen. 3 Because she sought reopening based on a marriage that 4 occurred after her removal order, Zhu had to “present[] clear 5 and convincing evidence indicating a strong likelihood that 6 [her] marriage is bona fide,” In re Velarde-Pacheco, 23 I. & 7 N. Dec. 253, 256 (B.I.A. 2002), meaning that it was not 8 entered into “for the purpose of evading the immigration 9 laws,” 8 C.F.R. § 204.2 (a)(1)(ii). 10 We find no abuse of discretion in the BIA’s conclusion 11 that Zhu failed to establish her prima facie eligibility for 12 adjustment based on her marriage. The BIA reasonably gave 13 limited weight to Zhu’s affidavits because they were brief, 14 vague, and not corroborated by objective evidence, and her 15 undated and uncaptioned photographs did not establish that 16 her marriage was bona fide. See Y.C. v. Holder, 741 F.3d 17 324, 332 (2d Cir. 2013) (“We generally defer to the agency’s 18 evaluation of the weight to be afforded an applicant’s 19 documentary evidence.”). Although the BIA did not explicitly 20 address a bank verification letter dated shortly after the 21 wedding showing that Zhu and her husband were joint account [3] 1 holders, Zhu does not mention the bank statement in her brief 2 and without other credible corroborating evidence the BIA’s 3 failure to acknowledge the form is not a sufficient basis to 4 find an abuse of discretion. See Matter of Laureano, 19 I. 5 & N. Dec. 1, 3 (B.I.A. 1983) (holding that when determining 6 whether a marriage is bona fide, the agency may consider 7 “proof that the beneficiary has been listed as the 8 petitioner’s spouse on insurance policies, property leases, 9 income tax forms, or bank accounts; and testimony or other 10 evidence regarding courtship, wedding ceremony, shared 11 residence, and experiences”). 12 For the foregoing reasons, the petition for review is 13 DENIED. All pending motions and applications are DENIED and 14 stays VACATED. 15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, 17 Clerk of Court