Summary
We need to summarize this case for search indexing. The case is Chen v. Whitaker, 2d Cir. 2018, unpublished summary order. Key topics: asylum, withholding of removal, CAT relief based on China's population control program (birth of children in US). Also motion to reopen based on changed country conditions regarding
Topics
Practice areas
Questions Presented
- Whether the agency erred in denying Chen's application for asylum, withholding of removal, and CAT relief based on the birth of her children in the United States.
- Whether the BIA erred in denying Chen's motion to reopen as untimely and on the merits of her claims based on changed country conditions and her Falun Gong practice.
Holdings
- The court found no error in the agency's determination that Chen failed to satisfy her burden for asylum, withholding of removal, and CAT relief.
- The court found no error in the BIA's determination that Chen's motion to reopen was untimely and that the evidence did not demonstrate a material change in country conditions excusing the untimeliness, nor did it establish a prima facie case for relief based on Falun Gong.
Key quotations
“based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding.” (4)
“In determining whether evidence accompanying a motion to reopen demonstrates a material change in country conditions that would justify reopening, [the BIA] compare[s] the evidence of country conditions submitted with the motion to those that existed at the time of the merits hearing below.” (4-5)
“to establish a well-founded fear of persecution in the absence of any evidence of past persecution, an alien must make some showing that authorities in h[er] country of nationality are either aware of h[er] activities or likely to become aware of h[er] activities.” (5)
Factual background
Petitioner Xiao Ying Chen, a native and citizen of China, applied for asylum, withholding of removal, and CAT relief, asserting a fear of persecution based on the birth of her children in the United States in violation of China's population control program. She also moved to reopen her removal proceedings to present new evidence supporting her fear of persecution under China's population control program and to apply for relief based on her fear of persecution on account of her practice of Falun Gong.
Procedural history
Petitioner sought review of two BIA decisions: (1) August 25, 2011 decision affirming IJ's January 7, 2010 denial of asylum, withholding of removal, and CAT relief; (2) June 26, 2012 decision denying motion to reopen.