Yin v. Holder, (2nd Cir. 2009)
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08-5139-ag
Yin v. Holder
BIA
A99-423-311
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
"(SUMMARY ORDER)." A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 24 th day of June, two thousand nine.
PRESENT:
HON. RALPH K. WINTER,
HON. JOSÉ A. CABRANES,
HON. DEBRA ANN LIVINGSTON,
Circuit Judges.
NAN ZHU YIN,
Petitioner,
v. 08-5139-ag
NAC
ERIC H. HOLDER JR., UNITED STATES
ATTORNEY GENERAL, *
Respondent.
1 FOR PETITIONER: Michael Brown, New York, New York.
2 3 FOR RESPONDENT: Michael F. Hertz, Acting Assistant 4 Attorney General, United States 5 Department of Justice, Civil 6 Division, Douglas E. Ginsburg, Senior 7 Litigation Counsel, Office of 8 Immigration Litigation, Glen T.
9 Jaeger, Trial Attorney, Office of 10 Immigration Litigation, Washington, 11 D.C.
12 13 UPON DUE CONSIDERATION of this petition for review of a 14 Board of Immigration Appeals ("BIA") decision, it is hereby 15 ORDERED, ADJUDGED, AND DECREED that the petition for review 16 is DENIED.
Nan Zhu Yin, a native and citizen of the People's Republic of China, seeks review of a September 23, 2008 order of the BIA denying his motion to reopen his removal proceedings. In re Nan Zhu Yin, No. A099 423 311 (B.I.A.
Sept. 23, 2008). We assume the parties' familiarity with the underlying facts and procedural history of the case.
We review the BIA's denial of a motion to reopen for abuse of discretion, mindful of the Supreme Court's admonition that such motions are "disfavored." Ali v.
Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.
Doherty, 502 U.S. 314, 322-23 (1992)).
The BIA did not abuse its discretion in finding that Yin failed to establish prima facie eligibility for the underlying relief he sought. See Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005). Contrary to Yin's assertion, nothing in the BIA's decision indicates that it applied an improper standard of review where it held that his evidence failed to "meet his burden to demonstrate a realistic chance that he can establish his eligibility for the requested relief." See id. (finding that an asylum applicant seeking to reopen his case must "establish prima facie eligibility for asylum, i.e., `a realistic chance' that he will be able to establish eligibility").
Additionally, we have found that the BIA may deny a motion to reopen which fails to overcome a prior adverse credibility determination. See Kaur v. BIA, 413 F.3d 232, 234 (2d Cir. 2005) (per curiam); cf. Qin Wen Zheng v.
Gonzales, 500 F.3d 143, 147-48 (2d Cir. 2007). In his motion, Yin asserted that the Chinese government discovered his Falun Gong activities in the United States. However, as the BIA noted, the IJ found Yin's testimony not credible, including his assertion that he practiced Falun Gong in the United States. The BIA affirmed that credibility finding, which remains unchallenged. Moreover, the BIA properly found that the affidavit Yin submitted in support of his motion, which stated that he left China illegally through a smuggler, contradicted his original testimony, which indicated that he left China through an inspection point using his own passport. Thus, we find no abuse of discretion in the BIA's denial of Yin's motion to reopen.
See Ali, 448 F.3d at 517.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
FOR THE COURT: Catherine O'Hagan Wolfe, Clerk By:
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric H. Holder Jr. is automatically substituted for former Attorney General Michael B. Mukasey as respondent in this case.
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