Opinion
No. 07-5139-ag NAC.
November 25, 2008.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.
FOR PETITIONER: Yimin Chen, New York, New York. FOR RESPONDENT: Gregory G. Katsas, Assistant Attorney General, Civil Division, Susan K. Houser, Senior Litigation Counsel, Jason Xavier Hamilton, Attorney, Civil Division, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.
PRESENT:HON. JON O. NEWMAN, HON. BARRINGTON D. PARKER, HON. RICHARD C. WESLEY, Circuit Judges.
Gui Chen, a native and citizen of China, seeks review of an October 18, 2007 order of the BIA denying his motion to reopen his removal proceedings. In re Gui Chen, No. A77 318 125 (B.I.A. Oct. 18, 2007). 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, with the understanding 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 found that Chen failed to establish eligibility 29 for reopening, and, alternatively, that his motion to reopen should be denied as a matter of discretion in light of the IJ's unchallenged adverse credibility determination. As the BIA appropriately concluded, the prior credibility determination "tarnished the reliability of evidence [Chen] submitted" with his motion to reopen. Chen argues that the BIA erred in relying on the IJ's prior adverse credibility determination in evaluating his motion to reopen where he submitted "objective" reports of the persecution of democratic activists. When evidence that depends for its probative force on the movant's credibility is submitted with a motion to reopen the BIA may reasonably decline to accord probative weight to such evidence where the IJ made an adverse credibility determination.Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-47 (2d Cir. 2007); see also Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (finding that evidence submitted did not overcome the IJ's prior adverse credibility determination). Even where the evidence is "objective," as in the case of a news article or State Department Report, a prior credibility determination may fatally taint such evidence. Here, regardless of whether Chen's evidence revealed the persecution of democratic activists in China, the BIA simply did not believe that Chen had become a democratic activist. We find no abuse of discretion in that decision. See Qin Wen Zheng, 500 F.3d at 146-47; Kaur, 413 F.3d at 233.
For the foregoing reasons, the petition for review is DENIED. The pending request for oral argument in this petition is DENIED.