E-Chai Yang v. Gonzales

Second Circuit

E-Chai Yang v. Gonzales

173 F. App'x 857

CourtCourt of Appeals for the Second Circuit

DecidedMarch 14, 2006

DocketNo. 04-6624-ag

StatusPublished

This text of 173 F. App'x 857 (E-Chai Yang v. Gonzales) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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E-Chai Yang v. Gonzales, 173 F. App'x 857 (2d Cir. 2006).

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SUMMARY ORDER

E-Chai Yang petitions for review of the BIA’s denial of her motion to reopen her removal proceedings. We presume the parties’ familiarity with the underlying facts and procedural history of the case.

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). To [858]*858prevail on a motion to reopen, a petitioner must establish, among other things, prima facie eligibility for asylum, meaning she must have a realistic chance of establishing eligibility. See Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir.2005). In her motion to reopen, Yang offered two family planning notices issued in April 2004, one demanding that Yang report for a sterilization procedure and the other demanding that she pay a fine of 20,000 yuan. The BIA denied Yang’s motion to reopen, in part, on the ground that these notices were insufficient rebuttal to the IJ’s adverse credibility determination. The IJ had found Yang not to be credible in her fear of sterilization, which was the same basis on which she sought to pursue her asylum claim if removal proceedings were reopened. Therefore, it was not an abuse of discretion for the BIA to conclude that Yang’s evidence failed to overcome the adverse credibility determination. See Kaur, 413 F.3d at 233-34; Ke Zhen Zhao v. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.2001). Because Yang’s claims for withholding and CAT relief also relied on her fear of sterilization, the adverse credibility determination also prevented Yang from establishing prima facie eligibility for these forms of relief. Cf. Ramsameachire v. Ashcroft, 357 F.3d 169, 184-85 (2d Cir. 2004).

For the foregoing reasons, the petition for review is DENIED. Having completed our review, we DENY the pending motion for a stay of removal.

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SUMMARY ORDER

E-Chai Yang petitions for review of the BIA’s denial of her motion to reopen her removal proceedings. We presume the parties’ familiarity with the underlying facts and procedural history of the case.

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). To [858]*858prevail on a motion to reopen, a petitioner must establish, among other things, prima facie eligibility for asylum, meaning she must have a realistic chance of establishing eligibility. See Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir.2005). In her motion to reopen, Yang offered two family planning notices issued in April 2004, one demanding that Yang report for a sterilization procedure and the other demanding that she pay a fine of 20,000 yuan. The BIA denied Yang’s motion to reopen, in part, on the ground that these notices were insufficient rebuttal to the IJ’s adverse credibility determination. The IJ had found Yang not to be credible in her fear of sterilization, which was the same basis on which she sought to pursue her asylum claim if removal proceedings were reopened. Therefore, it was not an abuse of discretion for the BIA to conclude that Yang’s evidence failed to overcome the adverse credibility determination. See Kaur, 413 F.3d at 233-34; Ke Zhen Zhao v. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.2001). Because Yang’s claims for withholding and CAT relief also relied on her fear of sterilization, the adverse credibility determination also prevented Yang from establishing prima facie eligibility for these forms of relief. Cf. Ramsameachire v. Ashcroft, 357 F.3d 169, 184-85 (2d Cir. 2004).

For the foregoing reasons, the petition for review is DENIED. Having completed our review, we DENY the pending motion for a stay of removal.

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