     17-3224 (L)
     Hu v. Barr
                                                                                BIA
                                                                            Kolbe, IJ
                                                                        A206 580 020
                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT

                              SUMMARY ORDER
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 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 12th day of May, two thousand twenty.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            DENNIS JACOBS,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   KAIJUN HU,
14            Petitioner,
15
16                 v.                                          17-3224 (L),
17                                                             18-1707 (Con)
18                                                             NAC
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                 Gary J. Yerman, New York, NY.
25
26   FOR RESPONDENT:                 Joseph H. Hunt, Assistant Attorney
27                                   General; Holly M. Smith, Senior
28                                   Litigation Counsel; Jesse D.
29                                   Lorenz, Trial Attorney, Office of
30                                   Immigration Litigation, United
31                                   States Department of Justice,
32                                   Washington, DC.
 1          UPON DUE CONSIDERATION of these petitions for review of

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

 3   ORDERED, ADJUDGED, AND DECREED that the petitions for review

 4   are DENIED.

 5          Petitioner       Kaijun    Hu,   a    native   and    citizen    of    the

 6   People’s Republic of China, seeks review of a September 14,

 7   2017    decision    of     the    BIA   affirming      a    January    9,    2017

 8   decision    of     an     Immigration        Judge    (“IJ”)   denying       Hu’s

 9   application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).                   In re Kaijun

11   Hu, No. A 206 580 020 (B.I.A. Sept. 14, 2017), aff’g No. A

12   206 580 020 (Immig. Ct. N.Y. City Jan. 9, 2017).                       Hu also

13   seeks review of a May 14, 2018 decision of the BIA denying

14   Hu’s motion to reopen.            In re Kaijun Hu, No. A 206 580 020

15   (B.I.A. May 14, 2018).             We assume the parties’ familiarity

16   with the underlying facts and procedural history in this

17   case.

18   Family Planning Claim

19          We have reviewed the IJ’s decision as modified by the

20   BIA.    See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

21   520, 522 (2d Cir. 2005).           The applicable standards of review

22   are well established.            See 8 U.S.C. § 1252(b)(4)(B); Wei Sun

23   v.   Sessions, 883        F.3d    23,   27    (2d    Cir.   2018)   (reviewing
                                             2
 1   factual findings for substantial evidence and questions of

 2   law and the application of law to undisputed facts de novo).

 3       The BIA assumed that Hu had suffered persecution in

 4   China on account of his resistance to the family planning

 5   policy but concluded that there was a fundamental change in

 6   circumstances such that he no longer had a well-founded fear

 7   of persecution.   Accordingly, we consider only whether the

 8   Government rebutted the presumption of a well-founded fear

 9   of future persecution.   The Government may rebut the

10   presumption of a well-founded fear of future persecution

11   arising from past persecution by identifying “a fundamental

12   change in circumstances such that the applicant no longer

13   has a well-founded fear of persecution.”    8 C.F.R.

14   § 1208.13(b)(1)(i)(A); see also Lecaj v. Holder, 616 F.3d

15   111, 115 (2d Cir. 2010).    In deciding whether there has been

16   a fundamental change, the agency considers the “particular

17   circumstances of the applicant’s case as demonstrated by

18   testimony and other evidence.”     Lecaj, 616 F.3d at 116.   We

19   find no error in the agency’s conclusion that there was a

20   fundamental change in circumstances since the time of Hu’s

21   past persecution in 1999.

22       At the time of his hearing, Hu had long since paid the

23   family planning fines, his children were teenagers, his wife
                                    3
 1   continued to reside in China without further incident, and

 2   his testimony did not reflect that the Chinese government

 3   was still interested in him or his wife.               Because the agency

 4   considered these particular facts and correctly found that

 5   there was no longer any evidence that the Chinese government

 6   would seek to harm Hu, the agency did not err in finding

 7   that the presumption of future persecution was rebutted.

 8   See Tambadou v. Gonzales, 446 F.3d 298, 303-04 (2d Cir.

 9   2006)     (requiring     “individualized          analysis”     of   changed

10   circumstances); Melgar de Torres v. Reno, 191 F.3d 307, 313

11   (2d   Cir.   1999)     (finding   no       fear   of   future   harm   where

12   similarly situated family members remain unharmed).                    Given

13   the absence of a risk of future harm needed for asylum, Hu

14   necessarily failed to meet the higher standard required for

15   withholding of removal and CAT relief.                 Lecaj, 616 F.3d at

16   119-20.

17   Motion to Reopen

18         We have reviewed the BIA’s denial of Hu’s motion to

19   reopen for abuse of discretion.              Jian Hui Shao v. Mukasey,

20   546 F.3d 138, 168-69 (2d Cir. 2008).                   Hu’s November 2017

21   motion to reopen was timely filed 61 days after the BIA’s

22   September 2017 decision affirming the IJ’s denial of relief.

23   Accordingly, contrary to the BIA’s statement, Hu was not
                                            4
 1   required to show any change in conditions in China.                   Cf. 8

 2   U.S.C. § 1229a(c)(7)(C)(ii) (requiring changed conditions in

 3   country of removal to excuse untimely and/or number barred

 4   motion to reopen).           Despite this error, we find no abuse of

 5   discretion in the BIA’s alternative reasons for the denial

 6   of reopening.

 7          “A motion to reopen proceedings shall not be granted

 8   unless it appears to the Board that evidence sought to be

 9   offered is material and was not available and could not have

10   been    discovered      or     presented    at   the    former    hearing.”

11   8 C.F.R. § 1003.2(c)(1); see also 8 U.S.C. § 1229a(c)(7)(B).

12   Failure    to   offer   such     evidence    is,    therefore,    a   proper

13   ground on which the BIA may deny a motion to reopen, as is

14   the movant’s failure to establish a prima facie case for the

15   underlying substantive relief sought.               See INS v. Abudu, 485

16   U.S. 94, 104-05 (1988).

17          As the BIA determined, Hu had renounced his membership

18   in the Chinese Communist Party and had begun practicing

19   Falun Gong at the time of his 2017 hearing before the IJ and

20   could have presented evidence of those facts at the hearing.

21   Accordingly,      the   BIA     did   not   abuse      its   discretion   in

22   declining to reopen based on evidence that was previously

23   available.      See 8 C.F.R. § 1003.2(c)(1).
                                           5
 1         As to the letter from Hu’s wife stating that Chinese

 2   authorities were aware of Hu’s Falun Gong practice, the BIA

 3   did   not    err    in    concluding         that    the   evidence,      although

 4   previously unavailable, did not establish a prima facie case

 5   for asylum.        To establish prima facie eligibility for asylum

 6   based on “activities undertaken after . . . arrival in the

 7   United      States,      an     alien   must        make   some   showing       that

 8   authorities in his country of nationality are (1) aware of

 9   his   activities         or    (2)   likely     to     become     aware    of    his

10   activities.”        Hongsheng Leng v. Mukasey, 528 F.3d 135, 138

11   (2d Cir. 2008).               We have cautioned that claims based on

12   activities undertaken solely in the United States may be

13   easy to manufacture and we defer to the BIA’s decision not

14   to credit Hu’s wife’s letter, particularly as it provided no

15   explanation of how authorities allegedly became aware of

16   Hu’s activities in the United States.                      Y.C. v. Holder, 741

17   F.3d 324, 334, 338 (2d Cir. 2013).

18         For the foregoing reasons, the petitions for review are

19   DENIED.     All pending motions and applications are DENIED and

20   stays VACATED.

21                                           FOR THE COURT:
22                                           Catherine O’Hagan Wolfe,
23                                           Clerk of Court
24
25

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