Yan Jiang v. Holder , 558 F. App'x 46 ( 2014 )

12-4598-ag
Jiang v. Holder
BIA
A089 255 818
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 March, two thousand fourteen.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 DEBRA ANN LIVINGSTON,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 YAN JIANG, AKA CHENG BIN DONG,
14 Petitioner,
15
16 v. 12-4598-ag
17
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Mona Liza Fabular Lao, New York, New
24 York.
25
26 FOR RESPONDENT: Jacob Bashyrov (Stuart F. Delery,
27 Assistant Attorney General; Carl H.
28 McIntyre, Jr., Assistant Director, on
29 the brief), Office of Immigration
30 Litigation, United States Department
31 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 is
4 DENIED.
5 Petitioner Yan Jiang, a native and citizen of the
6 People’s Republic of China, seeks review of the October 22,
7 2012, order of the BIA denying her motion to reopen. In re
8 Yan Jiang, No. A089 255 818 (B.I.A. Oct. 22, 2012). We assume
9 the parties’ familiarity with the underlying facts and
10 procedural history in this case. We review the BIA’s denial
11 of Jiang’s motion to reopen for abuse of discretion. See Ali
12 v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).
13 It is well established that the BIA may deny reopening
14 based on the movant’s failure to demonstrate her prima facie
15 eligibility for the underlying relief sought. See INS v.
16 Abudu, 485 U.S. 94, 104 (1988). To establish eligibility for
17 asylum, an applicant who, like Jiang, does not rely on past
18 persecution must demonstrate an objectively reasonable fear of
19 future persecution by either: (1) offering evidence that “she
20 would be singled out individually for persecution”; or
21 (2) proving the existence of a “pattern or practice . . . of
22 persecution of a group of persons similarly situated to the
2
1 applicant . . . .” 8 C.F.R. § 1208.13(b)(2). To obtain
2 relief under the Convention Against Torture (“CAT”), the
3 applicant must show that she would more likely than not be
4 tortured. See 8 C.F.R. §§ 1208.16(c)(2), 1208.17.
5 Jiang argues that she established a well-founded fear of
6 future persecution and a likelihood of torture based on her
7 recent membership in the Chinese Democratic Party (“CDP”) in
8 the United States. However, the BIA reasonably found that
9 Jiang’s evidence of country conditions was not material as it
10 pertained to individuals who were not similarly situated to
11 her, including prominent activists who operated within China.
12 See 8 C.F.R. § 1003.2(c)(1) (requiring that a motion to reopen
13 be based on new evidence material to the movant’s eligibility
14 for asylum); 8 C.F.R. §§ 1208.13(b)(2)(iii)(A),
15 1208.16(b)(2)(i) (providing that evidence of a pattern or
16 practice of persecution must involve a group of persons
17 “similarly situated to the applicant”).
18 The BIA also reasonably found that Jiang failed to
19 establish that she would be singled out individually for
20 persecution in China. Although Jiang submitted letters from
21 her brother-in-law and father and a village committee notice
22 that indicated Chinese authorities’ awareness of her CDP
3
1 activities in the United States, the BIA reasonably gave
2 little weight to those documents because the letters were not
3 notarized, the father’s letter was not based on personal
4 knowledge, and the agency’s adverse credibility determination
5 regarding Jiang’s previous claims undermined the authenticity
6 and reliability of the documents. See Qin Wen Zheng v.
7 Gonzales, 500 F.3d 143, 147 (2d Cir. 2007) (concluding that
8 the BIA reasonably refused to credit motion to reopen evidence
9 based on underlying adverse credibility determination). While
10 it may not have been reasonable for the BIA to expect
11 additional authenticating evidence, see Cao He Lin v. U.S.
12 Dep’t of Justice, 428 F.3d 391, 404-05 (2d Cir. 2005), the BIA
13 did not abuse its discretion in affording the documents
14 minimal weight based on the fact that they were tainted by the
15 previous adverse credibility finding, see Qin Wen Zheng, 500
16 F.3d at 147; Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
17 315, 342 (2d Cir. 2006) (holding that the weight afforded to
18 the applicant’s evidence in immigration proceedings lies
19 largely within the discretion of the agency).
20 Because Jiang’s evidence did not establish that the
21 Chinese government was targeting members of the U.S. CDP or
22 would target her individually based on its knowledge of her
4
1 activities in the United States, the BIA did not abuse its
2 discretion in denying the motion to reopen for failure to
3 demonstrate prima facie eligibility for relief. See 8 C.F.R.
4 § 1003.2(c)(1); Jian Hui Shao v. Mukasey, 546 F.3d 138, 154-55
5 (2d Cir. 2008) (noting that it is the movant’s burden to
6 establish prima facie eligibility).
7 For the foregoing reasons, the petition for review is
8 DENIED. As we have completed our review, any stay of removal
9 that the Court previously granted in this petition is VACATED.
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
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