The opinion
12-4954
Chen v. Holder
BIA
A099 938 815
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 27th day of February, two thousand fourteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 QIN CHEN,
14 Petitioner,
15
16 v. 12-4954
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Michael Brown, New York, New York.
24
25 FOR RESPONDENT: Stuart Delery, Assistant Attorney
26 General; Keith I. McManus, Senior
27 Litigation Counsel; Tracie N. Jones,
28 Trial Attorney, Office of
29 Immigration Litigation, Civil
30 Division, United States Department
31 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
4 review is DENIED.
5 Petitioner Qin Chen, a native and citizen of China,
6 seeks review of a November 30, 2012, decision of the BIA
7 denying her motion to remand. In re Qin Chen, No. A099 938
8 815 (B.I.A. Nov. 30, 2012). We assume the parties’
9 familiarity with the case.
10 We review the BIA’s denial of a motion to remand for
11 abuse of discretion. See Li Yong Cao v. Dep’t of Justice,
12 421 F.3d 149, 157 (2d Cir. 2005). A motion to remand based
13 on new evidence is subject to the same substantive standards
14 as motions to reopen. Id. at 157. Accordingly, remand
15 “shall not be granted unless it appears to the Board that
16 evidence sought to be offered is material and was not
17 available and could not have been discovered or presented at
18 the former hearing.” 8 C.F.R. § 1003.2(c)(1).
19 The BIA did not abuse its discretion in denying Chen’s
20 motion to remand, as Chen failed to establish prima facie
21 eligibility for asylum. To establish eligibility for
22 asylum, an applicant like Chen, who does not rely on past
2
1 persecution, must demonstrate a well-founded fear of future
2 persecution. Kyaw Zwar Tun v. INS, 445 F.3d 554, 564 (2d
3 Cir. 2006). “[T]o establish a well-founded fear of
4 persecution in the absence of any evidence of past
5 persecution, an alien must make some showing that
6 authorities in [her] country of nationality are either aware
7 of [her] activities or likely to become aware of [her]
8 activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 143
9 (2d Cir. 2008) (per curiam).
10 Contrary to Chen’s claim, the agency did not err in
11 declining to give probative weight to the new evidence she
12 submitted in support of her motion to remand. The agency
13 reasonably determined that the evidence, which included,
14 inter alia, an unsigned village notice, photographs of her
15 practicing Falun Gong in the United States, a letter from
16 her father, a 2007 State Department report, and various news
17 articles, did not demonstrate that Chinese officials knew of
18 or were likely become aware of her activities in the United
19 States. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
20 315, 342 (2d Cir. 2006) (noting that the weight afforded to
21 the applicant’s evidence in immigration proceedings lies
22 largely within the discretion of the agency).
23
3
1 Chen’s claim that remand is warranted based on the
2 absence from the record of the full translated text of her
3 father’s letter also lacks merit. Although the missing page
4 may call into question some of the BIA’s findings, we
5 generally will not remand to the BIA for consideration of
6 evidence not in the record as the statute and regulations
7 provide for motions for reconsideration and reopening to
8 consider either allegations of error in an agency decision
9 or new evidence. See Xiao Xing Ni v. Gonzales, 494 F.3d
10 260, 262 (2d Cir. 2007).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
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