    11-4010
    Chen v. Holder
                                                                                  BIA
                                                                          A078 691 807


                      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.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 24th day of July, two thousand twelve.

    PRESENT:
             JON O. NEWMAN,
             RICHARD C. WESLEY,
             RAYMOND J. LOHIER, JR.,
                  Circuit Judges.
    _____________________________________

    HONG CHEN,
             Petitioner,

                     v.                                    11-4010
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               Hong Chen, pro se.

    FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
                                  Attorney General; Greg D. Mack,
                                  Senior Litigation Counsel; Colin J.
                                  Tucker, Trial Attorney, Office of
                                  Immigration Litigation, United
                                  States Department of Justice,
                                  Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

decision of the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is DENIED.

    Hong Chen, a native and citizen of the People’s

Republic of China, seeks review of a September 14, 2011,

order of the BIA denying his motion to reopen.    Hong Chen,

No. A078 691 807 (B.I.A. Sept. 14, 2011).    We assume the

parties’ familiarity with the underlying facts and

procedural history of this case.

    We review the BIA’s denial of a motion to reopen for

abuse of discretion, mindful of the Supreme Court’s

admonition that such motions are “disfavored.”    Ali v.

Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (per curiam)

(quoting INS v. Doherty, 502 U.S. 314, 323 (1992)(quotation

marks omitted)).    “A motion to reopen proceedings shall not

be granted unless it appears to the Board that evidence

sought to be offered is material and was not available and

could not have been discovered or presented at the former

hearing . . . .”    8 C.F.R. § 1003.2(c)(1); Norani v.

Gonzales, 451 F.3d 292, 294 & n.3 (2d Cir. 2006) (per

curiam) (looking to the date on which the IJ closed the



                               2
hearing as the date before which the evidence must have been

unavailable, undiscoverable, or unpresentable).     Failure to

offer such evidence is, therefore, a proper ground on which

the BIA may deny a motion to reopen, as is the movant’s

failure to establish a prima facie case for the underlying

substantive relief sought.   See INS v. Abudu, 485 U.S. 94,

104-05 (1988).

    In this case, the BIA did not abuse its discretion in

denying Chen’s motion to reopen.     Although Chen attempted to

rehabilitate the inconsistency in his prior testimony

regarding his 2001 attempt to gain admission to the United

States, he failed to demonstrate that his explanation was

based on evidence that was both new and unavailable at the

time of his November 2008 hearing.     See Norani, 451 F.3d at

294 & n.3; 8 C.F.R. § 1003.2(c)(1).

    Further, the agency reasonably determined that Chen

failed to demonstrate that the evidence he submitted with

his motion to reopen regarding his health condition would

change the outcome of his proceedings.     See Matter of

Coehlo, 20 I. & N. Dec. 464, 473 (BIA 1992).     The letter

from Chen’s physician in China was inconsistent with his

testimony and the evidence he had previously submitted in


                              3
support of his application regarding the physician’s

diagnosis of his condition.    Because the agency could

reasonably rely on these inconsistencies to find that Chen

was not credible, see 8 U.S.C. § 1158(b)(1)(B)(iii);      Xiu

Xia Lin v. Mukasey, 534 F.3d 162, 163-64 (2d Cir. 2008) (per

curiam), the BIA did not abuse its discretion in concluding

that Chen failed to demonstrate that the new evidence

regarding his medical treatment in China would have changed

the outcome in his case.

    Further, the BIA did not abuse its discretion in

concluding that Chen failed to demonstrate prima facie

eligibility for asylum based on his fear of forcible

sterilization in China.    The BIA reasonably concluded that

Chen’s claim, based on his fiancée’s pregnancy with their

first child and their intent to have more children, absent

further evidence, was too speculative to merit relief.      See

Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir.

2005) (per curiam) (noting that, absent “solid support” in

the record that his fear is objectively reasonable, an

alien’s claim that he fears future persecution is

“speculative at best”).

    Finally, to the extent that Chen’s argues that the BIA

erred in not specifically addressing his withholding of

                               4
removal and CAT relief on the basis of his fear of

sterilization, we decline to remand.    Given Chen’s failure

to satisfy the standard for asylum, and because his claims

for withholding of removal and CAT relief were based on the

same factual predicate as his asylum claim, it necessarily

follows that he failed to satisfy the higher burden of proof

for withholding of removal and CAT relief.    See 8 C.F.R.

§ 1208.16(b); Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

2006).    Accordingly, remand would be futile. Cf. Xiao Ji

Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 335 (2d Cir.

2006).

    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, any stay of

removal that the Court previously granted in this petition

is VACATED, and any pending motion for a stay of removal in

this petition is DISMISSED as moot. Any pending request for

oral argument in this petition is DENIED in accordance with

Federal Rule of Appellate Procedure 34(a)(2), and Second

Circuit Local Rule 34.1(b).

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




                               5
