Opinion
No. 03-4637-ag (NAC).
February 27, 2007.
UPON DUE CONSIDERATION of this petition for review of the Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.
FOR PETITIONER: THEODORE N. COX, New York, New York.
FOR RESPONDENT: KIRTI VAIDYA REDDY, Assistant United States Attorney (Sara L. Shudofsky, on the brief)for Michael J. Garcia, United States Attorney, Southern District of New York.
PRESENT: HON. DENNIS JACOBS, Chief Judge , HON. JOSEPH M. McLAUGHLIN, HON. GUIDO CALABRESI, Circuit Judges.
Petitioner Fen Rong Chen, a native and citizen of the People's Republic of China, seeks review of a March 4, 2003 order of the BIA denying his motion to reopen and remand for consideration of a new claim under Article 3 of the United Nations Convention Against Torture ("CAT"). In re Fen Rong Chen, No. A73-043-297 (B.I.A. March 4, 2003). We assume the parties' familiarity with the underlying facts, the procedural history, and the issues presented for review.
This Court reviews the BIA's denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) ( per curiam); Adjin v. BCIS, 437 F.3d 261, 263 (2d Cir. 2006) ( per curiam). An abuse of discretion may be found where the BIA's decision "provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious. manner." Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (internal citations omitted).
Chen's motion to reopen was denied by the BIA for failure to establish a prima facie case for CAT relief. See Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005) (to prevail on a motion to reopen, a movant must establish prima facie eligibility for the relief requested). In his petition for review, Chen argues only that he presented sufficient evidence of torture based on his illegal departure from China; he does not preserve his claim that he faces torture for his opposition to China's family planning policy. We therefore address the BIA's denial of Chen's motion only in regard to his claim that he faces torture for his illegal departure. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir. 2005).
Chen argues that the BIA erred by rejecting generalized evidence he presented, including an Amnesty International report, a purported notice of a crackdown on smuggling activities in Fuqing city, and a letter from the Hou Yu Chinese American Association alleging that one of its members was tortured upon returning to China. The BIA did not abuse its discretion in concluding that Chen had "provided only general statements, and documentary and anecdotal evidence regarding the possibility of torture if returned to China." Such generalized evidence is insufficient to constitute the prima facie eligibility for CAT relief which is necessary to reopen a final order of removal. See Lin v. U.S. Dep't of Justice, 432 F.3d 156, 160 (2d Cir. 2005) also Adjin, 437 F.3d at 264.
Chen points to other language in the BIA opinion to demonstrate that he was held to an overly demanding burden of proof. After concluding that Chen's allegations did not constitute prima facie evidence, the opinion states that Chen "failed to establish that it is more likely than not that he will be tortured by a government official in China." This statement could well be part of a conclusion (made elsewhere in the BIA opinion) that Chen had demonstrated no basis for a CAT claim. In any case, the requisite prima facie finding was made, it was not an abuse of discretion, and a remand is therefore unnecessary.
For the foregoing reasons, Chen's petition for review is DENIED. Having completed our review, the pending motion for a stay of removal in this petition is DENIED. Any pending request for oral arguments is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), Second Circuit Local Rule 34(d)(1).