Kexin Wu v. Holder , 531 F. App'x 162 ( 2013 )

11-2597-ag
Wu v. Holder
BIA
A088 777 215
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 10th day of September, two thousand thirteen.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 PETER W. HALL,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 KEXIN WU,
14 Petitioner,
15
16 v. 11-2597-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Michael Brown, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Alison Marie Igoe, Senior
27 Litigation Counsel; John M. McAdams,
28 Jr., Attorney, Office of Immigration
29 Litigation, United States Department
30 of Justice, Washington, D.C.
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 Kexin Wu, a native and citizen of the People’s Republic
6 of China, seeks review of a June 2, 2011, decision of the
7 BIA denying his motion to reopen. In re Kexin Wu, No. A088
8 777 215 (B.I.A. June 2, 2011). We assume the parties’
9 familiarity with the underlying facts and procedural history
10 of this case.
11 We review the BIA’s denial of Wu’s motion to reopen for
12 abuse of discretion, mindful of the Supreme Court’s
13 admonition that such motions are “disfavored.” Ali v.
14 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (per curiam).
15 The BIA may deny a motion to reopen where a movant fails to
16 establish a prima facie case for the underlying substantive
17 relief sought. See INS v. Abudu, 485 U.S. 94, 104 (1988).
18 Because Wu failed to establish his prima facie
19 eligibility for relief based on his newly-commenced practice
20 of Falun Gong, the BIA did not abuse its discretion in
21 denying reopening. See Abudu, 485 U.S. at 104-105; Ali, 448
22 F.3d at 517. In support of his motion, Wu submitted a
23 notice from the Qida Villager Committee, which indicated
2
1 that the committee was aware of Wu’s Falun Gong activities
2 in the United States and ordered his wife to urge him to
3 stop participating in Falun Gong activities and return to
4 China to be punished. However, the BIA was entitled to
5 accord little probative weight to this village notice
6 because, as the BIA found, it was “unsigned,” “not
7 authenticated in any manner,” and “not sufficiently
8 reliable.” See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
9 F.3d 315, 342 (2d Cir. 2006) (finding that the weight
10 afforded to the applicant’s evidence in immigration
11 proceedings lies largely within the discretion of the
12 agency). Likewise, the BIA reasonably accorded little
13 probative weight to Wu’s wife’s affidavit because it found
14 that the letter possessed little indicia of reliability,
15 particularly in light of the fact that Wu’s wife admitted
16 that an unidentified person wrote the affidavit on her
17 behalf and because the affidavit merely described the
18 circumstances surrounding Wu’s wife’s receipt of the
19 unauthenticated village notice, to which the BIA already had
20 declined to give probative weight. See Xiao Ji Chen, 471
21 F.3d at 342; see also Siewe v. Gonzales, 480 F.3d 160, 170
22 (2d Cir. 2007).
23 Wu argues that the BIA abused its discretion by relying
24 on his failure to authenticate the village committee notice
25 and his wife’s affidavit. While Wu correctly asserts that
3
1 the agency errs when it rejects a document solely based on
2 an individual’s failure to authenticate pursuant to 8 C.F.R.
3 § 1287.6, see Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d
4 391, 404-405 (2d Cir. 2005), we find no abuse of discretion
5 here, where the BIA gave Wu’s evidence limited weight
6 because the notice was unsigned and unauthenticated and
7 neither the notice nor the affidavit possessed indicia of
8 reliability, see Xiao Ji Chen, 471 F.3d at 342.
9 Finally, the BIA reasonably found that Wu’s claim —
10 that unknown individuals reported his Falun Gong activities
11 to Chinese officials after hearing of his activities from
12 other unidentified individuals with whom Wu had talked in
13 the United States — lacked specificity. See Abudu, 485 U.S.
14 at 110 (stating that an alien carries a “heavy burden” of
15 demonstrating that the proffered new evidence would likely
16 alter the result in his case). Accordingly, because Wu
17 failed to successfully establish his prima facie eligibility
18 for relief, the BIA did not abuse its discretion in denying
19 his motion to reopen. Id. at 104; Ali, 448 F.3d at 517.
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, the pending motion
22 for a stay of removal in this petition is DISMISSED as moot.
23 FOR THE COURT:
24 Catherine O’Hagan Wolfe, Clerk
4