         09-5022-ag
         Chen v. Holder
                                                                                       BIA
                                                                               A097 530 494
                            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 23 rd day of September, two thousand ten.
 5
 6       PRESENT:
 7                JOSEPH M. McLAUGHLIN,
 8                GUIDO CALABRESI,
 9                RICHARD C. WESLEY,
10                         Circuit Judges.
11       _______________________________________
12
13       LIN CHEN,
14                        Petitioner,
15
16                         v.                                   09-5022-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                 Jed S. Wasserman, New York, New
24                                       York.
25
26       FOR RESPONDENT:                 Tony West, Assistant Attorney
27                                       General; Lyle D. Jentzer, Senior
28                                       Litigation Counsel; Aaron R. Petty,
29                                       Trial Attorney, Office of
30                                       Immigration Litigation, United
31                                       States Department of Justice,
32                                       Washington, D.C.

33                UPON DUE CONSIDERATION of this petition for review of a
1    decision of the Board of Immigration Appeals (“BIA”), it is

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

3    review is DENIED.

4        Lin Chen, a native and citizen of the People’s Republic

5    of China, seeks review of a November 6, 2009, order of the

6    BIA denying her motion to reopen. In re Lin Chen , No. A097

7    530 494 (B.I.A. Nov. 6, 2009).     We assume the parties’

8    familiarity with the underlying facts and procedural history

9    of this case.

10       We review the BIA’s denial of Chen’s motion to reopen

11   for abuse of discretion.    Ali v. Gonzales, 448 F.3d 515, 517

12   (2d Cir. 2006).     “A motion to reopen proceedings shall not

13   be granted unless it appears to the Board that evidence

14   sought to be offered is material and was not available and

15   could not have been discovered or presented at the former

16   hearing . . . .”    8 C.F.R. § 1003.2(c)(1).   Moreover, even

17   if the evidence presented with a motion to reopen is both

18   material and previously unavailable, an alien’s “ability to

19   secure reopening depends on a demonstration of prima facie

20   eligibility for asylum, which means she must show a

21   ‘realistic chance’ that she will be able to obtain such

22   relief.”   Jian Hui Shao v. Mukasey, 546 F.3d 138, 168 (2d

23   Cir. 2008) (quoting Poradisova v. Gonzales, 420 F.3d 70, 78


                                    2
1    (2d Cir. 2005)) .   Here, the BIA did not abuse its discretion

2    in denying Chen’s motion to reopen.

3        Contrary to Chen’s argument, the BIA did not fail to

4    consider any of Chen’s background evidence in finding that

5    she failed to demonstrate her prima facie eligibility for

6    relief based on her membership in the China Democracy Party

7    (“CDP”).   See id. at 169 (finding that, where the agency

8    provides rational explanations for its conclusions, it need

9    not “expressly parse or refute on the record each individual

10   argument or piece of evidence offered by the

11   petitioner”)(citation omitted).       Here, as the BIA noted, all

12   of the articles and other evidence Chen submitted did not

13   pertain to individuals similarly situated to Chen, namely

14   those who conducted CDP activities in the United States.

15   Rather, these articles pertained to individuals who were

16   imprisoned in China for democratic activities they carried

17   out in China.   And, as the BIA explained, “in the absence of

18   specifics” it could not “simply extrapolate” as to how

19   Chen’s “activities in the United States would be viewed.”

20   Thus, we find no error in the BIA’s determination that

21   Chen’s background evidence failed to demonstrate her prima

22   facie eligibility for relief.       See id. at 168.

23       We also find no merit in Chen’s argument that the BIA


                                     3
1    failed to consider adequately the letters from Chen’s

2    daughter and sister stating that police came to Chen’s house

3    looking for Chen and stating that they are aware of her CDP

4    activities.   As discussed above, this evidence does not

5    overcome the BIA’s concern that, even if the Chinese

6    government were aware of Chen’s support for the CDP, Chen

7    did not present any evidence demonstrating that she would be

8    subject to the same treatment as political dissidents who

9    carry out their activities in China.    Consequently, we find

10   no abuse of discretion in the BIA’s denial of Chen’s motion

11   to reopen based on its finding that the evidence she

12   presented failed to demonstrate her prima facie eligibility

13   for relief.   See id.

14       For the foregoing reasons, the petition for review is

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

16   removal that the Court previously granted in this petition

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

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

19   oral argument in this petition is DENIED in accordance with

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

21   Circuit Local Rule 34.1(b).

22                                 FOR THE COURT:
23                                 Catherine O’Hagan Wolfe, Clerk


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