         11-930 (L)
         Zheng v. Holder
                                                                                       BIA
                                                                                Mulligan, IJ
                                                                               A077 722 812
                            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 27th day of August, two thousand twelve.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                BARRINGTON D. PARKER,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       YONG AN ZHENG,
14                Petitioner,
15
16                         v.                                   11-930 (L);
17                                                              11-4111 (Con)
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:               Richard Tarzia, Belle Mead, NJ.
25
26       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
27                                     Attorney General; Cindy S. Ferrier,
28                                     Assistant Director; Keith I.
29                                     McManus, Senior Litigation Counsel;
30                                     Tracie N. Jones, Trial Attorney,
 1                          Office of Immigration Litigation,
 2                          United States Department of Justice,
 3                          Washington, D.C.
 4
 5       UPON DUE CONSIDERATION of these petitions for review of

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

 7   hereby ORDERED, ADJUDGED, AND DECREED that the petitions for

 8   review in U.S.C.A. Dtk. No. 11-930 (L) and U.S.C.A. Dkt. No.

 9   11-4111 (Con) are DENIED.

10       Petitioner Yong An Zheng, a native and citizen of

11   China, seeks review of a February 10, 2011, order of the

12   BIA, affirming the October 20, 2008, decision of an

13   Immigration Judge (“IJ”), which denied his application for

14   asylum, withholding of removal, and relief under the

15   Convention Against Torture (“CAT”), In re Yong An Zheng, No.

16   A077 722 812 (B.I.A. Feb. 10, 2011), aff’g No. A077 722 812

17   (Immig. Ct. N.Y. City Oct. 20, 2008), and a September 13,

18   2011, decision of the BIA denying his motion to reopen his

19   removal proceedings, In re Yong An Zheng, No. A077 722 812

20   (B.I.A. Sept. 13, 2011).    We assume the parties’ familiarity

21   with the underlying facts and procedural history in this

22   case.

23

24



                                    2
 1   I.   Asylum and Withholding of Removal - Dtk. No. 11-930 (L)

 2        Under the circumstances of this case, we have reviewed

 3   both the IJ’s and BIA’s opinions “for sake of completeness.”

 4   Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008) (per

 5   curiam) (internal quotation marks omitted).    The applicable

 6   standards of review are well-established.     See 8 U.S.C.

 7   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

 8   (2d Cir. 2009).

 9        An alien who, like Zheng, demonstrates past persecution

10   benefits from the presumption of a well-founded fear of

11   future persecution.   See Baba v. Holder, 569 F.3d 79, 86 (2d

12   Cir. 2009); 8 C.F.R. § 1208.13(b)(1)(i); see also 8 C.F.R.

13   § 1208.16(b)(1)(i).   Once past persecution is established,

14   the burden rests firmly with the government to rebut this

15   presumption by showing, by a preponderance of the evidence,

16   either a “fundamental change in circumstances such that the

17   applicant no longer has a well-founded fear of persecution”

18   or the reasonable possibility of internal relocation within

19   the country of removal.   See Kone v. Holder, 596 F.3d 141,

20   147 (2d Cir. 2010); 8 C.F.R. § 1208.13(b)(1)(i)(A); see also

21   8 C.F.R. § 1208.16(b)(1)(i)(A).

22



                                   3
 1       Contrary to Zheng’s assertions, the agency did not err

 2   in finding that circumstances had fundamentally changed such

 3   that his presumption of a well-founded fear of future

 4   persecution had been rebutted.    See Xiao Ji Chen v. U.S.

 5   Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (holding

 6   that the weight accorded to the applicant’s evidence in

 7   immigration proceedings lies largely within the discretion

 8   of the agency).   In finding that circumstances had

 9   fundamentally changed, the agency reasonably relied on

10   Zheng’s own testimony, which indicated that his only

11   subjective fear in returning to China concerned his illegal

12   departure.   See Dong Zhong Zheng v. Mukasey, 552 F.3d 277,

13   284 (2d Cir. 2009) (noting that a well-founded fear is a

14   “subjective fear that is objectively reasonable”) (citations

15   and internal quotations marks omitted).

16       Zheng’s argument that the agency failed to consider the

17   continuing nature of his past persecution, in reliance on In

18   re Y-T-L, 23 I. & N. Dec. 601 (B.I.A. 2003), is misplaced.

19   Unlike the applicant in In re Y-T-L, Zheng’s presumption of

20   a well-founded fear stemmed from his detention and family

21   planning fines; not from his wife’s forced sterilization.

22   See 23 I. & N. Dec. at 601.   Moreover, family planning


                                   4
 1   officials did not commence any arguably persecutory acts

 2   against Zheng until after his wife’s forced sterilization in

 3   1989 and, thus, the absence of additional fines or harm from

 4   family planning officials since Zheng’s departure in 1999

 5   cannot be viewed as a function of his wife’s forced

 6   sterilization, as it was in In re Y-T-L.   See 23 I. & N.

 7   Dec. at 605.

 8       Instead, the government established fundamentally

 9   changed circumstances because: (1) Zheng had fully paid all

10   the fines imposed by family planning officials; (2) his

11   children are now adults; (3) his wife and family had

12   remained in China without harm or further fines since 1999;

13   and (4) as discussed above, Zheng no longer had any

14   subjective fear of persecution on the basis of his past

15   family planning violations.   See Tambadou v. Gonzales, 446

16   F.3d 298, 303-04 (2d Cir. 2006); see also Melgar de Torres

17   v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) .

18       Because the agency did not err in finding that the

19   government had rebutted the presumption of a well-founded

20   fear of persecution, applicable to Zheng’s asylum claim, the

21   agency also did not err in finding, with respect to his

22   withholding of removal claim, that the government had

23   rebutted the presumption that Zheng’s life or freedom would
                                   5
 1   be threatened in China.   See Kone, 596 F.3d at 148 n.5; cf.

 2   Gomez v. INS, 947 F.2d 660, 665 (2d Cir. 1991).   We decline

 3   to consider the agency’s denial of CAT relief because Zheng

 4   does not contest that finding in this Court.    See Yueqing

 5   Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir.

 6   2005).

 7   II. Motion to Reopen - Dkt. No. 11-4111 (Con)

 8       Zheng sought reopening on the basis of his recent

 9   practice of Falun Gong.   We review the BIA’s denial of a

10   motion to reopen for abuse of discretion.   See Ali v.

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

12   The BIA may properly deny reopening where the movant fails

13   to establish a prima facie case for the underlying

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

15   104-05 (1988).

16       Because Zheng failed to support his motion with any

17   meaningful description of his current or prospective

18   practice of Falun Gong, the BIA reasonably determined that

19   his generalized claim of mistreatment of Falun Gong

20   practitioners in China was insufficient to establish his

21   prima facie eligibility for relief.   See Jian Hui Shao v.

22   Mukasey, 546 F.3d 138, 168 (2d Cir. 2008); see also

23   Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008)
                                   6
 1   (per curiam) (“[T]o establish a well-founded fear of

 2   persecution in the absence of any evidence of past

 3   persecution, an alien must make some showing that

 4   authorities in his country of nationality are either aware

 5   of his activities or likely to become aware of his

 6   activities.”).

 7       Although Zheng takes issue with the BIA’s failure to

 8   explicitly discuss his country conditions evidence, in light

 9   of Zheng’s failure to meaningfully describe his current

10   practice of Falun Gong in the United States, or his future

11   practice of Falun Gong in China, the record does not

12   compellingly suggest that the BIA ignored any evidence.     See

13   Xiao Ji Chen, 471 F.3d at 337 n.17 (presuming that the

14   agency “has taken into account all of the evidence before

15   [it], unless the record compellingly suggests otherwise”);

16   Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87 (2d Cir. 2007) (per

17   curiam) (noting that the BIA is not required to “expressly

18   parse or refute on the record each individual argument or

19   piece of evidence offered by the petitioner.” (internal

20   quotation marks omitted)).

21       For the foregoing reasons, the petitions for review in

22   in U.S.C.A. Dtk. No. 11-930 (L) and U.S.C.A. Dkt. No.

23   11-4111 (Con) are DENIED.    As we have completed our review,
                                    7
 1   any stay of removal that the Court previously granted in

 2   these petitions is VACATED, and any pending motion for a

 3   stay of removal in these petitions is DISMISSED as moot.

 4   Any pending request for oral argument in these petitions is

 5   DENIED in accordance with Federal Rule of Appellate

 6   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

 7                              FOR THE COURT:
 8                              Catherine O’Hagan Wolfe, Clerk
 9
10




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