         12-3
         Wu v. Holder
                                                                                       BIA
                                                                               A089-254-134
                             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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 21st day of August, two thousand thirteen.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                JOHN M. WALKER, JR.,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       FENG JUAN WU,
14                Petitioner,
15
16                      v.                                      12-3
17                                                              NAC
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:               Yee Ling Poon, New York, New York.
25
26       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
27                                     Attorney General; Anthony P.
28                                     Nicastro, Senior Litigation Counsel;
29                                     Jeffery R. Leist, Attorney, Office
30                                     of Immigration Litigation, Civil
31                                     Division, United States Department
32                                     of Justice, Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   Board of Immigration Appeals (“BIA”) decision, it is hereby

 3   ORDERED, ADJUDGED, and DECREED that the petition for review

 4   is DENIED.

 5       Feng Juan Wu, a native and citizen of the People’s

 6   Republic of China, seeks review of a December 8, 2011 order

 7   of the BIA denying her motion to reopen. In re Feng Juan Wu,

 8   No. A089 254 134 (B.I.A. Dec. 8, 2011).     We assume the

 9   parties’ familiarity with the underlying facts and

10   procedural history in this case.

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

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

13   Cir. 2005) (per curiam).     Wu was required to demonstrate to

14   the BIA her prima facie eligibility for relief and that the

15   evidence she submitted was material and not previously

16   available.   8 C.F.R. § 1003.2(a), (c)(1); see INS v. Abudu,

17   485 U.S. 94, 104-05 (1988).

18       The BIA did not abuse its discretion in finding that Wu

19   failed to demonstrate her prima facie eligibility.     See

20   Abudu, 485 U.S. at 104-05.     Contrary to Wu’s assertion, the

21   BIA explicitly considered the relevant evidence of country

22   conditions and reasonably found that, although religious


                                     2
 1   freedom was limited in China and this limitation sometimes

 2   rises to the level of persecution, approximately fifty to

 3   one hundred million Christians worship at unregistered house

 4   churches throughout China.   Thus, while we have held that

 5   the BIA has an obligation to consider the “record as a

 6   whole,” and may abuse its discretion by denying a motion to

 7   reopen without addressing “all the factors relevant to [a]

 8   petitioner’s claim,” Ke Zhen Zhao v. U.S. Dep’t of Justice,

 9   265 F.3d 83, 97 (2d Cir. 2001), the record does not

10   compellingly suggest that the BIA failed to take into

11   account all of the evidence before it.

12       Moreover, while the background evidence in the record

13   identified incidents of harm to Christians in China, Wu

14   failed to submit any evidence indicating that she, herself,

15   would face harm if she returned to China.   See 8 C.F.R.

16   § 1208.13(b)(2)(iii) (requiring an alien to provide evidence

17   that there is a “reasonable possibility he or she would be

18   singled out individually for persecution” to demonstrate a

19   well-founded fear of future persecution); Hongsheng Leng v.

20   Mukasey, 528 F.3d 135, 143 (2d Cir. 2008) (per curiam)

21   (“[T]o establish a well-founded fear of persecution in the

22   absence of any evidence of past persecution, an alien must


                                   3
 1   make some showing that authorities in his country of

 2   nationality are aware of his activities or likely to become

 3   aware of his activities.”).     Accordingly, it was reasonable

 4   for the BIA to conclude that Wu’s claims were too

 5   speculative to merit relief.     See Jian Xing Huang v. INS,

 6   421 F.3d 125, 128-29 (2d Cir. 2005) (per curiam) (holding

 7   that absent support in the record for the petitioner’s

 8   assertion that he would be subjected to persecution, his

 9   fear was “speculative at best”).

10       Finally, as to Wu’s assertion that she will suffer

11   persecution by being prohibited from practicing her religion

12   or being forced to practice her religion in secret, she did

13   not exhaust that specific issue before the BIA.

14   Accordingly, we decline to consider it in the first

15   instance.     See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d

16   104, 122 (2d Cir. 2007)(reaffirming that this Court “may

17   consider only those issues that formed the basis for [the

18   BIA’s] decision”).

19       For the foregoing reasons, the petition for review is

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

21   removal that the Court previously granted in this petition

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


                                     4
1   this petition is DISMISSED as moot.    Any pending request for

2   oral argument in this petition is DENIED in accordance with

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

4   Circuit Local Rule 34.1(b).

5                                 FOR THE COURT:
6                                 Catherine O’Hagan Wolfe, Clerk




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