         12-22
         Wang v. Holder
                                                                                       BIA
                                                                               A088 805 012
                           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 24th day of July, two thousand thirteen.
 5
 6       PRESENT:
 7                PIERRE N. LEVAL,
 8                JOSÉ A. CABRANES,
 9                ROBERT D. SACK,
10                     Circuit Judges.
11       _____________________________________
12
13       HUI XIA WANG,
14                Petitioner,
15
16                        v.                                    12-22
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Thomas D. Barra, New York, N.Y.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; Paul Fiorino,
27                                     Senior Litigation Counsel; Rebekah
28                                     Nahas, Trial Attorney; Amanda Selvy,
29                                     Law Clerk, Office of Immigration
30                                     Litigation, Civil Division, United
31                                     States Department of Justice,
32                                     Washington, D.C.
 1
 2       UPON DUE CONSIDERATION of this petition for review of a

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

 4   ORDERED, ADJUDGED, AND DECREED that the petition for review

 5   is DENIED.

 6       Petitioner Hui Xia Wang, a native and citizen of the

 7   People’s Republic of China, seeks review of a December 9,

 8   2011, decision of the BIA denying her motion to reopen.      In

 9   re Hui Xia Wang, No. A088 805 012 (B.I.A. Dec. 9, 2011).      We

10   assume the parties’ familiarity with the underlying facts

11   and procedural history in this case.   Because Wang did not

12   exhaust her argument that her motion to reopen demonstrated

13   her eligibility for relief under the Convention Against

14   Torture, we have reviewed the denial of reopening only with

15   respect to asylum and withholding of removal.   See Karaj v.

16   Gonzales, 462 F.3d 113, 119 (2d Cir. 2006).

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

18   abuse of discretion.   See Ali v. Gonzales, 448 F.3d 515, 517

19   (2d Cir. 2006) (per curiam).   It is well established that

20   the BIA may deny an alien’s motion to reopen for failure to

21   demonstrate her prima facie eligibility for the underlying

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

23   (1988).   To establish eligibility for asylum and withholding

                                    2
 1   of removal, an applicant, like Wang, who does not rely on

 2   past persecution must demonstrate a well-founded fear and

 3   likelihood of future persecution, which requires a “showing

 4   that authorities in h[er] country of nationality are either

 5   aware of h[er] activities or likely to become aware of h[er]

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

 7   (2d Cir. 2008) (per curiam).

 8       Wang argues that she demonstrated that Chinese

 9   authorities had become aware of her Falun Gong practice

10   based on a letter from her father stating that, in order to

11   establish Wang’s eligibility for asylum, he revealed her

12   Falun Gong activities to a local police officer, who

13   responded that the National Security Squad would punish her

14   if she returned to China.   However, the BIA reasonably

15   declined to credit the letter because it was: (1) not sworn

16   or notarized; (2) implausible that her father would

17   voluntarily expose her potentially illegal activities;

18   (3) unsupported by the photograph Wang submitted, which only

19   showed her father posing in front of the police station, or

20   any other evidence; and (4) obtained specifically for

21   removal proceedings.   See Xiao Ji Chen v. U.S. Dep’t of

22   Justice, 471 F.3d 315, 342 (2d Cir. 2006); Siewe v.


                                    3
 1   Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007); Matter of H-

 2   L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 214-15 & n.5 (BIA 2010)

 3   (affording minimal weight to documents obtained solely for

 4   removal proceedings), remanded on other grounds by Hui Lin

 5   Huang v. Holder, 677 F.3d 130 (2d Cir. 2012).   The BIA also

 6   reasonably declined to afford probative weight to the video

 7   and photographs of Wang protesting against China’s

 8   repression of Falun Gong practitioners because they do not

 9   sufficiently identify Wang such that Chinese authorities

10   could locate her in China, and are cumulative of similar

11   photographs presented during her removal proceedings.

12   See 8 C.F.R. § 1003.2(c)(1) (requiring that material,

13   previously unavailable evidence support a motion to reopen);

14   Xiao Ji Chen, 471 F.3d at 342.

15       Furthermore, even assuming that the police in Wang’s

16   village are aware of her activities in the United States,

17   her father noted in his letter that the officer with whom he

18   spoke stated that the local police were not responsible for

19   enforcing laws against the practice of Falun Gong and that

20   the agency charged with that task does not punish

21   individuals who cease their practice upon returning to

22   China.   Because Wang’s father did not provide her identity


                                   4
 1   information (i.e., identification number or address in

 2   China) to the pertinent enforcement agency and Wang did not

 3   assert that she would continue practicing Falun Gong in

 4   China, the BIA reasonably found that she failed to establish

 5   her prima facie eligibility for relief.     See Hongsheng Leng,

 6   528 F.3d at 143 (explaining that applicant must demonstrate

 7   that his “putative ‘persecutor’” is or will become aware of

 8   applicant’s disfavored activities) (internal citation

 9   omitted).     Accordingly, the BIA did not abuse its discretion

10   in denying reopening.     See id.; Abudu, 485 U.S. at 104-05.

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
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