         12-4954
         Chen v. Holder
                                                                                       BIA
                                                                               A099 938 815
                               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 27th day of February, two thousand fourteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                RICHARD C. WESLEY,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       QIN CHEN,
14                        Petitioner,
15
16                        v.                                    12-4954
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                 Michael Brown, New York, New York.
24
25       FOR RESPONDENT:                 Stuart Delery, Assistant Attorney
26                                       General; Keith I. McManus, Senior
27                                       Litigation Counsel; Tracie N. Jones,
28                                       Trial Attorney, Office of
29                                       Immigration Litigation, Civil
30                                       Division, United States Department
31                                       of Justice, Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   review is DENIED.

 5       Petitioner Qin Chen, a native and citizen of China,

 6   seeks review of a November 30, 2012, decision of the BIA

 7   denying her motion to remand.       In re Qin Chen, No. A099 938

 8   815 (B.I.A. Nov. 30, 2012).     We assume the parties’

 9   familiarity with the case.

10       We review the BIA’s denial of a motion to remand for

11   abuse of discretion.    See Li Yong Cao v. Dep’t of Justice,

12   421 F.3d 149, 157 (2d Cir. 2005).       A motion to remand based

13   on new evidence is subject to the same substantive standards

14   as motions to reopen.     Id. at 157.    Accordingly, remand

15   “shall not be granted unless it appears to the Board that

16   evidence sought to be offered is material and was not

17   available and could not have been discovered or presented at

18   the former hearing.”    8 C.F.R. § 1003.2(c)(1).

19       The BIA did not abuse its discretion in denying Chen’s

20   motion to remand, as Chen failed to establish prima facie

21   eligibility for asylum.     To establish eligibility for

22   asylum, an applicant like Chen, who does not rely on past


                                     2
 1   persecution, must demonstrate a well-founded fear of future

 2   persecution.    Kyaw Zwar Tun v. INS, 445 F.3d 554, 564 (2d

 3   Cir. 2006).    “[T]o establish a well-founded fear of

 4   persecution in the absence of any evidence of past

 5   persecution, an alien must make some showing that

 6   authorities in [her] country of nationality are either aware

 7   of [her] activities or likely to become aware of [her]

 8   activities.”    Hongsheng Leng v. Mukasey, 528 F.3d 135, 143

 9   (2d Cir. 2008) (per curiam).

10       Contrary to Chen’s claim, the agency did not err in

11   declining to give probative weight to the new evidence she

12   submitted in support of her motion to remand.    The agency

13   reasonably determined that the evidence, which included,

14   inter alia, an unsigned village notice, photographs of her

15   practicing Falun Gong in the United States, a letter from

16   her father, a 2007 State Department report, and various news

17   articles, did not demonstrate that Chinese officials knew of

18   or were likely become aware of her activities in the United

19   States.   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

20   315, 342 (2d Cir. 2006) (noting that the weight afforded to

21   the applicant’s evidence in immigration proceedings lies

22   largely within the discretion of the agency).

23

                                    3
 1       Chen’s claim that remand is warranted based on the

 2   absence from the record of the full translated text of her

 3   father’s letter also lacks merit.     Although the missing page

 4   may call into question some of the BIA’s findings, we

 5   generally will not remand to the BIA for consideration of

 6   evidence not in the record as the statute and regulations

 7   provide for motions for reconsideration and reopening to

 8   consider either allegations of error in an agency decision

 9   or new evidence.   See Xiao Xing Ni v. Gonzales, 494 F.3d

10   260, 262 (2d Cir. 2007).

11       For the foregoing reasons, the petition for review is

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

13   removal that the Court previously granted in this petition

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

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

16   oral argument in this petition is DENIED in accordance with

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

18   Circuit Local Rule 34.1(b).

19                                 FOR THE COURT:
20                                 Catherine O’Hagan Wolfe, Clerk
21
22




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