Yong an Zheng v. Holder , 493 F. App'x 202 ( 2012 )

11-930 (L)
Zheng v. Holder
BIA
Mulligan, IJ
A077 722 812
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 27th day of August, two thousand twelve.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 BARRINGTON D. PARKER,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 YONG AN ZHENG,
14 Petitioner,
15
16 v. 11-930 (L);
17 11-4111 (Con)
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Richard Tarzia, Belle Mead, NJ.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Cindy S. Ferrier,
28 Assistant Director; Keith I.
29 McManus, Senior Litigation Counsel;
30 Tracie N. Jones, Trial Attorney,
1 Office of Immigration Litigation,
2 United States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of these petitions for review of
6 decisions of the Board of Immigration Appeals (“BIA”), it is
7 hereby ORDERED, ADJUDGED, AND DECREED that the petitions for
8 review in U.S.C.A. Dtk. No. 11-930 (L) and U.S.C.A. Dkt. No.
9 11-4111 (Con) are DENIED.
10 Petitioner Yong An Zheng, a native and citizen of
11 China, seeks review of a February 10, 2011, order of the
12 BIA, affirming the October 20, 2008, decision of an
13 Immigration Judge (“IJ”), which denied his application for
14 asylum, withholding of removal, and relief under the
15 Convention Against Torture (“CAT”), In re Yong An Zheng, No.
16 A077 722 812 (B.I.A. Feb. 10, 2011), aff’g No. A077 722 812
17 (Immig. Ct. N.Y. City Oct. 20, 2008), and a September 13,
18 2011, decision of the BIA denying his motion to reopen his
19 removal proceedings, In re Yong An Zheng, No. A077 722 812
20 (B.I.A. Sept. 13, 2011). We assume the parties’ familiarity
21 with the underlying facts and procedural history in this
22 case.
23
24
2
1 I. Asylum and Withholding of Removal - Dtk. No. 11-930 (L)
2 Under the circumstances of this case, we have reviewed
3 both the IJ’s and BIA’s opinions “for sake of completeness.”
4 Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008) (per
5 curiam) (internal quotation marks omitted). The applicable
6 standards of review are well-established. See 8 U.S.C.
7 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
8 (2d Cir. 2009).
9 An alien who, like Zheng, demonstrates past persecution
10 benefits from the presumption of a well-founded fear of
11 future persecution. See Baba v. Holder, 569 F.3d 79, 86 (2d
12 Cir. 2009); 8 C.F.R. § 1208.13(b)(1)(i); see also 8 C.F.R.
13 § 1208.16(b)(1)(i). Once past persecution is established,
14 the burden rests firmly with the government to rebut this
15 presumption by showing, by a preponderance of the evidence,
16 either a “fundamental change in circumstances such that the
17 applicant no longer has a well-founded fear of persecution”
18 or the reasonable possibility of internal relocation within
19 the country of removal. See Kone v. Holder, 596 F.3d 141,
20 147 (2d Cir. 2010); 8 C.F.R. § 1208.13(b)(1)(i)(A); see also
21 8 C.F.R. § 1208.16(b)(1)(i)(A).
22
3
1 Contrary to Zheng’s assertions, the agency did not err
2 in finding that circumstances had fundamentally changed such
3 that his presumption of a well-founded fear of future
4 persecution had been rebutted. See Xiao Ji Chen v. U.S.
5 Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (holding
6 that the weight accorded to the applicant’s evidence in
7 immigration proceedings lies largely within the discretion
8 of the agency). In finding that circumstances had
9 fundamentally changed, the agency reasonably relied on
10 Zheng’s own testimony, which indicated that his only
11 subjective fear in returning to China concerned his illegal
12 departure. See Dong Zhong Zheng v. Mukasey, 552 F.3d 277,
13 284 (2d Cir. 2009) (noting that a well-founded fear is a
14 “subjective fear that is objectively reasonable”) (citations
15 and internal quotations marks omitted).
16 Zheng’s argument that the agency failed to consider the
17 continuing nature of his past persecution, in reliance on In
18 re Y-T-L, 23 I. & N. Dec. 601 (B.I.A. 2003), is misplaced.
19 Unlike the applicant in In re Y-T-L, Zheng’s presumption of
20 a well-founded fear stemmed from his detention and family
21 planning fines; not from his wife’s forced sterilization.
22 See 23 I. & N. Dec. at 601. Moreover, family planning
4
1 officials did not commence any arguably persecutory acts
2 against Zheng until after his wife’s forced sterilization in
3 1989 and, thus, the absence of additional fines or harm from
4 family planning officials since Zheng’s departure in 1999
5 cannot be viewed as a function of his wife’s forced
6 sterilization, as it was in In re Y-T-L. See 23 I. & N.
7 Dec. at 605.
8 Instead, the government established fundamentally
9 changed circumstances because: (1) Zheng had fully paid all
10 the fines imposed by family planning officials; (2) his
11 children are now adults; (3) his wife and family had
12 remained in China without harm or further fines since 1999;
13 and (4) as discussed above, Zheng no longer had any
14 subjective fear of persecution on the basis of his past
15 family planning violations. See Tambadou v. Gonzales, 446
16 F.3d 298, 303-04 (2d Cir. 2006); see also Melgar de Torres
17 v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) .
18 Because the agency did not err in finding that the
19 government had rebutted the presumption of a well-founded
20 fear of persecution, applicable to Zheng’s asylum claim, the
21 agency also did not err in finding, with respect to his
22 withholding of removal claim, that the government had
23 rebutted the presumption that Zheng’s life or freedom would
5
1 be threatened in China. See Kone, 596 F.3d at 148 n.5; cf.
2 Gomez v. INS, 947 F.2d 660, 665 (2d Cir. 1991). We decline
3 to consider the agency’s denial of CAT relief because Zheng
4 does not contest that finding in this Court. See Yueqing
5 Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir.
6 2005).
7 II. Motion to Reopen - Dkt. No. 11-4111 (Con)
8 Zheng sought reopening on the basis of his recent
9 practice of Falun Gong. We review the BIA’s denial of a
10 motion to reopen for abuse of discretion. See Ali v.
11 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (per curiam).
12 The BIA may properly deny reopening where the movant fails
13 to establish a prima facie case for the underlying
14 substantive relief sought. See INS v. Abudu, 485 U.S. 94,
15 104-05 (1988).
16 Because Zheng failed to support his motion with any
17 meaningful description of his current or prospective
18 practice of Falun Gong, the BIA reasonably determined that
19 his generalized claim of mistreatment of Falun Gong
20 practitioners in China was insufficient to establish his
21 prima facie eligibility for relief. See Jian Hui Shao v.
22 Mukasey, 546 F.3d 138, 168 (2d Cir. 2008); see also
23 Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008)
6
1 (per curiam) (“[T]o establish a well-founded fear of
2 persecution in the absence of any evidence of past
3 persecution, an alien must make some showing that
4 authorities in his country of nationality are either aware
5 of his activities or likely to become aware of his
6 activities.”).
7 Although Zheng takes issue with the BIA’s failure to
8 explicitly discuss his country conditions evidence, in light
9 of Zheng’s failure to meaningfully describe his current
10 practice of Falun Gong in the United States, or his future
11 practice of Falun Gong in China, the record does not
12 compellingly suggest that the BIA ignored any evidence. See
13 Xiao Ji Chen, 471 F.3d at 337 n.17 (presuming that the
14 agency “has taken into account all of the evidence before
15 [it], unless the record compellingly suggests otherwise”);
16 Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87 (2d Cir. 2007) (per
17 curiam) (noting that the BIA is not required to “expressly
18 parse or refute on the record each individual argument or
19 piece of evidence offered by the petitioner.” (internal
20 quotation marks omitted)).
21 For the foregoing reasons, the petitions for review in
22 in U.S.C.A. Dtk. No. 11-930 (L) and U.S.C.A. Dkt. No.
23 11-4111 (Con) are DENIED. As we have completed our review,
7
1 any stay of removal that the Court previously granted in
2 these petitions is VACATED, and any pending motion for a
3 stay of removal in these petitions is DISMISSED as moot.
4 Any pending request for oral argument in these petitions is
5 DENIED in accordance with Federal Rule of Appellate
6 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
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8