         11-1978-ag
         Zhang v. Holder
                                                                                       BIA
                                                                               A097 966 034
                                                                               A070 902 978
                            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 4th day of April, two thousand twelve.
 5
 6       PRESENT:
 7                ROBERT D. SACK,
 8                RICHARD C. WESLEY,
 9                GERARD E. LYNCH,
10                     Circuit Judges.
11       _____________________________________
12
13       CHU DUAN ZHANG, XIN TAN YU,
14                Petitioners,
15
16                         v.                                  11-1978-ag
17                                                             NAC
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:               Scott E. Bratton, New York, New
25                                     York.
26
27       FOR RESPONDENT:               Tony West, Assistant Attorney
28                                     General; Richard M. Evans, Assistant
29                                     Director; Andrew Oliveira, Trial
 1                           Attorney, Civil Division, Office of
 2                           Immigration Litigation, U.S.
 3                           Department of Justice, Washington,
 4                           D.C.
 5
 6       UPON DUE CONSIDERATION of this petition for review of a

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

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

 9   review is DENIED.

10       Petitioners Chu Duan Zhang and Xin Tan Yu (“Zhang”),

11   natives and citizens of the People’s Republic of China, seek

12   review of the April 26, 2011, order of the BIA denying their

13   motion to reopen.   In re Chu Duan Zhang, Xin Tan Yu, Nos.

14   A097 966 034/A070 902 978 (B.I.A. Apr. 26, 2011).       We assume

15   the parties’ familiarity with the underlying facts and

16   procedural history of the case.

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

18   abuse of discretion.   Kaur v. BIA, 413 F.3d 232, 233 (2d

19   Cir. 2005) (per curiam).   “A motion to reopen proceedings

20   shall not be granted unless it appears to the Board that

21   evidence sought to be offered is material and was not

22   available and could not have been discovered or presented at

23   the former hearing.”   8 C.F.R. § 1003.2(c)(1) (2005); see

24   also 8. U.S.C. § 1229a(c)(7).       Failure to offer such

25   evidence is, therefore, a proper ground on which the BIA may

                                     2
 1   deny a motion to reopen, as is the movant’s failure to

 2   establish a prima facie case for the underlying substantive

 3   relief sought.     See INS v. Abudu, 485 U.S. 94, 104-05

 4   (1988).

 5       In support of her claim that she established a prima

 6   facie case, Zhang argues that the BIA erred in declining to

 7   afford probative weight to a village committee notice and

 8   affidavit from her mother allegedly showing that Chinese

 9   officials are aware of Zhang’s Falun Gong practice.        She

10   avers that because she was found credible in her underlying

11   proceedings, and because the village committee notice she

12   submitted was not obtained in preparation for her

13   proceedings but when Chinese officials came to her mother’s

14   house, her evidence should have been credited.     These

15   arguments are unavailing.

16       The BIA’s rejection of the village committee notice was

17   not in error because the notice was not authenticated “in

18   any manner.”     See Shunfu Li v. Mukasey, 529 F.3d 141, 149-50

19   (2d Cir. 2008).    The BIA’s decision had nothing to do with

20   its finding that Zhang was credible, and finding Zhang

21   credible but giving the notice limited probative value are

22   not mutually exclusive, which makes    Zhang’s attempts to


                                     3
 1   distinguish her case from Qin Wen Zheng v. Gonzales, 500

 2   F.3d 143 (2d Cir. 2007) beside the point.       Furthermore,

 3   Zhang’s argument that the notice she submitted was unlike

 4   that found to be properly afforded minimal weight in Matter

 5   of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209 (BIA 2010) is not

 6   persuasive because the evidentiary concerns associated with

 7   an unsigned and unauthenticated notice are not obviated by

 8   the notice’s contemporaneity.       See Shunfu Li, 529 F.3d at

 9   149-50; see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471

10   F.3d 315, 342 (2d Cir. 2006).       We afford considerable

11   flexibility to the BIA to determine how unauthenticated

12   documents can impact and alien’s claim and find no abuse of

13   the flexibility and discretion here.       We also find Zhang’s

14   challenge to the BIA’s decision to afford her mother’s

15   affidavit minimal weight similarly unpersuasive.       See Li Hua

16   Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 104 (2d Cir.

17   2006).

18       Moreover, none of the additional evidence Zhang

19   submitted, including photographs of herself and her husband

20   practicing Falun Gong and engaging in a Falun Gong

21   demonstration, the 2007 Department of State profile on

22   China, and various news reports of China’s treatment of


                                     4
 1   Falun Gong practitioners established the Chinese

 2   government’s awareness of her practice of Falun Gong.   See

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

 4   Jian Hui Shao v. Mukasey, 546 F.3d 138, 162 (2d Cir. 2008).

 5       For the foregoing reasons, the petition for review is

 6   DENIED.

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




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