09-1268-ag
Chen v. Holder
                                                                                BIA
                                                                        A078 692 239
                  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 22 nd day of September, two thousand ten.

PRESENT:
         DENNIS JACOBS,
              Chief Judge,
         JON O. NEWMAN,
         DENNY CHIN,
             Circuit Judges.
______________________________________

YU ZHEN CHEN,
         Petitioner,
                                                        09-1268-ag
                 v.

UNITED STATES DEPARTMENT OF JUSTICE,
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondents.
______________________________________

FOR PETITIONER:                Yee Ling Poon, Robert Duk-Hwan Kim,
                               Law Offices of Yee Ling Poon, LLC, New
                               York, New York.

FOR RESPONDENTS:               Tony West, Assistant Attorney General;
                               Ernesto H. Molina, Jr., Assistant
                               Director; Dana M. Camilleri, Trial
                               Attorney,    Office   of   Immigration
                               Litigation, Civil Division, United
                              States    Department         of     Justice,
                              Washington, D.C.

    UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review is

DENIED.

    Petitioner, Yu Zhen Chen, a native and citizen of the

People’s Republic of China, seeks review of a February 27,

2009,    order   of   the   BIA   denying   her   motion   to   reopen   her

removal proceedings.         In re Yu Zhen Chen, No. A078 692 239

(B.I.A. Feb. 27, 2009).           We assume the parties’ familiarity

with the underlying facts and procedural history of the case.

    We review the BIA’s denial of a motion to reopen for

abuse of discretion.        Ali v. Gonzales, 448 F.3d 515, 517 (2d

Cir. 2006).      In denying Chen’s motion to reopen based on her

claimed fear of persecution on account of her husband’s pro-

democracy activities in the United States, the BIA reasonably

noted that Chen’s husband had been active in the pro-democracy

movement since December 2003, and that her claim, along with

much of the evidence she submitted in support of that claim,

could have been presented at her November 2005 hearing before

an IJ.    See 8 C.F.R. § 1003.2(c)(1); see also INS v. Abudu,

485 U.S. 94, 104 (1988).

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       Chen argues that the BIA ignored certain statements in

her husband’s affidavit post-dating her 2005 hearing, as well

as previously unavailable evidence that two prominent Chinese

dissidents were arrested and detained.               However, a reasonable

fact-finder would not be compelled to conclude that the BIA

ignored any material evidence that she submitted.                     See Jian

Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008); see

also Xiao Ji Chen v. Dep’t of Justice, 471 F.3d 315, 337 n.17

(2d Cir. 2006).          In fact, in addition to finding that much of

Chen’s evidence was previously available, the BIA reasonably

found that Chen’s evidence did not establish her prima facie

eligibility for relief based on her husband’s alleged pro-

democracy activities because her husband statements and the

arrest of two Chinese dissidents did not overcome an IJ’s

prior determination that Chen’s husband was not credible.                  See

Kaur v. BIA, 413 F.3d 232, 234 (2d Cir. 2005) (per curiam)

(holding that evidence submitted was not material because it

did    not    overcome       the    IJ’s     prior   adverse    credibility

determination); see also Wensheng Yan v. Mukasey, 509 F.3d 63,

65    n.1   (2d   Cir.    2007)    (noting   that    “because   the    alleged

persecution of Yan’s wife was the predicate for his alleged

resistance to sterilization, the IJ’s implausibility finding

as to that spousal persecution reasonably extended to Yan’s

                                      -3-
personal resistance.”).

      Moreover, we find speculative Chen’s argument that she

“established a realistic chance of establishing a reasonable

possibility       of    suffering       persecution     by     witnessing     the

persecution of her husband.”             See Jian Xing Huang v. INS, 421

F.3d 125, 129 (2d Cir. 2005).                 Although an asylum applicant

cannot succeed on claims of past persecution or fear of future

persecution based solely on persecution inflicted on a family

member on account of the family member’s political opinion, we

have recognized that there may exist circumstances when harm

to an applicant’s family member in conjunction with other

factors may be sufficiently severe to amount to persecution.

See Tao Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007);

Jorge-Tzoc v. Gonzales, 435 F.3d 146, 150 (2d Cir. 2006).                      In

such cases, however, the “harm suffered by family members in

combination with other factors . . . would presumably only be

[persecution] where . . . the applicant not only shares (or is

perceived     to       share)    the    characteristic        that    motivated

persecutors to harm the family members, but was also within

the   zone   of    risk   when    the    family    member     was   harmed,   and

suffered some continuing hardship after the incident.”                        Tao

Jiang, 500 F.3d at 141-42 (citing Jorge-Tzoc, 435 F.3d at

150).    Because        Chen    provided      no   evidence    beyond   general

                                        -4-
country    conditions     evidence     regarding      the    treatment     of

political dissidents in China and made no assertion that she

shares    the   alleged   political    opinion   of    her   husband,     she

failed to demonstrate her prima facie eligibility for relief

based     on    this   claim.    See    Abudu,     485      U.S.   at    104.

Accordingly, the BIA did not abuse its discretion in denying

Chen’s motion to reopen.        See Kaur, 413 F.3d at 233.

    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




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