         11-5228
         Lin v. Holder
                                                                                       BIA
                                                                                Zagzoug, I.J.
                                                                               A073 556 891


                           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 22nd day of August, two thousand twelve.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                JOSÉ A. CABRANES,
 9                ROBERT D. SACK,
10                     Circuit Judges.
11       _____________________________________
12
13       FANG LIN,
14                       Petitioner,
15
16                       v.                                     11-5228
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                Lee Ratner, Law Offices of Michael
24                                      Brown, New York, New York.
25
26       FOR RESPONDENT:                Tony West, Assistant Attorney
27                                      General; Richard M. Evans, Assistant
28                                      Director; Virginia Lum, Trial
 1                             Attorney, Office of Immigration
 2                             Litigation, United States Department
 3                             of Justice, Washington, D.C.

 4       UPON DUE CONSIDERATION of this petition for review of a

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

 6   hereby ORDERED, ADJUDGED, AND DECREED that the petition for

 7   review is DENIED.

 8       Fang Lin, a native and citizen of the People’s Republic

 9   of China, seeks review of a November 29, 2011, decision of

10   the BIA affirming the September 15, 2010, decision of

11   Immigration Judge (“IJ”) Randa Zagzoug, denying her motion

12   to reopen.   In re Fang Lin, No. A073 556 891 (B.I.A. Nov.

13   29, 2011), aff’g No. A073 556 891 (Immig. Ct. N.Y. City

14   Sept. 15, 2010).     We assume the parties’ familiarity with

15   the underlying facts and procedural history of this case.

16       Under the circumstances of this case, we have reviewed

17   the IJ’s decision as modified by the BIA’s decision.     See

18   Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522

19   (2d Cir. 2005).     We review the agency’s denial of a motion

20   to reopen for abuse of discretion, mindful of the Supreme

21   Court’s admonition that such motions are “disfavored.”     Ali

22   v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.

23   Doherty, 502 U.S. 314, 322-23 (1992)).     It is well


                                     2
 1   established that the BIA may deny an alien’s motion to

 2   reopen on the basis that the alien failed to demonstrate

 3   prima facie eligibility for the relief sought, i.e., a

 4   realistic chance that he will be able to establish

 5   eligibility.   See INS v. Abudu, 485 U.S. 94, 104-05 (1988)

 6   (describing the failure to establish prima facie eligibility

 7   for relief as one of   “at least three independent grounds on

 8   which the BIA may deny a motion to reopen”); Poradisova v.

 9   Gonzales, 420 F.3d 70, 78 (2d Cir. 2005).   “This requires

10   the alien to carry the ‘heavy burden’ of demonstrating that

11   the proffered new evidence would likely alter the result in

12   [his] case.”   Jian Hui Shao v. Mukasey, 546 F.3d 138, 168

13   (2d Cir. 2008) (quoting Abudu, 485 U.S. at 110).

14       To establish eligibility for asylum and withholding of

15   removal, an applicant, such as Lin, who does not rely on

16   past persecution must demonstrate a well-founded fear of

17   future persecution.    See 8 U.S.C. § 1101(a)(42); Kyaw Zwar

18   Tun v. INS, 445 F.3d 554, 564 (2d Cir. 2006).   Here, the

19   agency did not abuse its discretion when it concluded that

20   Lin failed to demonstrate prima facie eligibility for relief

21   on the basis of her fear of future persecution, because she

22   failed to offer adequate evidence demonstrating that


                                    3
 1   officials in China were “aware of . . . or likely to become

 2   aware of” her practice of Falun Gong in the United States.

 3   Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008).

 4       Lin argues that the notice of arrest she submitted with

 5   her motion to reopen demonstrated that authorities in China

 6   were aware of her practice of Falun Gong, and, thus,

 7   established her prima facie eligibility for relief, and that

 8   the BIA erred in according the notice minimal weight.

 9   However, we afford particular deference to the BIA’s

10   decision to give limited weight to the notice, see Xiao Ji

11   Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.

12   2006), and nothing in the record compels the conclusion that

13   the BIA erred in this respect.    Although Lin argues that the

14   BIA improperly speculated that the notice was fraudulent,

15   the record reflects that, in assigning minimal weight to the

16   notice, the BIA, in addition to noting that the notice was

17   unsigned, observed that it did not identify the author, and

18   was unauthenticated in any manner, pointed to the State

19   Department’s 2007 Country Conditions Report, which stated

20   that documents from China, including notices from public

21   security authorities, and particularly those from the Fujian

22   Province, were “subject to widespread fabrication and

23   fraud.”   Accordingly, absent “solid support” in the record

                                   4
 1   that her fear of persecution on the basis of her practice of

 2   Falun Gong is objectively reasonable, Lin’s claim of future

 3   persecution is “speculative at best.”       Jian Xing Huang v.

 4   U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005).

 5       Further, the BIA did not abuse its discretion in

 6   concluding that Lin’s decision to begin practicing Falun

 7   Gong constituted a self-induced change in personal

 8   circumstances that did not merit an exception to the time

 9   and number limitations applicable to motions to reopen.          See

10   Wei Guang Wang v. BIA, 437 F.3d 270, 274 (2d Cir. 2006)

11   (observing that a self-induced change in personal

12   circumstances cannot suffice to merit an exception to the

13   time and number limitations).       Because Lin’s background

14   materials described only either the continuation of China’s

15   repression of Falun Gong or violence against Falun Gong

16   practitioners that occurred in the United States, the BIA

17   reasonably concluded that she failed to establish changed

18   conditions for Falun Gong practitioners in China.       See

19   8 U.S.C. § 1229a(c)(7)(C)(ii) (providing that the time and

20   number limitations for filing a motion to reopen do not

21   apply if the motion is “based on changed country conditions

22   arising in the country of nationality or the country to

23   which removal has been ordered, if such evidence is material
                                     5
 1   and was not available and would not have been discovered or

 2   presented at the previous proceedings.”); see also 8 C.F.R.

 3   § 1003.2(c)(3)(ii) (same).    Accordingly, the agency did not

 4   abuse its discretion in denying Lin’s motion to reopen.

 5       For the foregoing reasons, the petition for review is

 6   DENIED.   Having completed our review, any stay of removal

 7   that the Court previously granted in this petition is

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

 9   this petition is DISMISSED as moot. Any pending request for

10   oral argument in this petition is DENIED in accordance with

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

12   Circuit Local Rule 34.1(b).

13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe, Clerk
15
16




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