Jin Jian Chen v. Lynch , 630 F. App'x 798 ( 2015 )


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  •                                                                                   FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                           Tenth Circuit
    FOR THE TENTH CIRCUIT                        October 27, 2015
    _________________________________
    Elisabeth A. Shumaker
    Clerk of Court
    JIN JIAN CHEN,
    Petitioner,
    v.                                                          No. 15-9531
    (Petition for Review)
    LORETTA E. LYNCH,
    United States Attorney General,
    Respondent.
    _________________________________
    ORDER AND JUDGMENT*
    _________________________________
    Before TYMKOVICH, Chief Judge, HOLMES and PHILLIPS, Circuit Judges.
    _________________________________
    Jin Jian Chen, a native and citizen of the People’s Republic of China, petitions
    for review of the Board of Immigration Appeals’ (BIA) denial of his motion to
    reopen his immigration case. Exercising jurisdiction under 
    8 U.S.C. § 1252
    , we deny
    review.
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously to grant the parties’ request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
    submitted without oral argument. This order and judgment is not binding precedent,
    except under the doctrines of law of the case, res judicata, and collateral estoppel. It
    may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
    and 10th Cir. R. 32.1.
    I. BACKGROUND
    Mr. Chen came to this country in 1992. The agency denied his application for
    asylum and withholding of exclusion and deportation in 1993, but he remained in the
    United States. He married and had two children, and in 2014, he became a Christian.
    In January 2015, Mr. Chen moved the BIA to reopen his immigration case
    based on his religion, asserting that conditions had worsened for Christians in China.1
    In support of his motion, he asserted that if he were to be returned to China, he would
    attend an underground church and spread the gospel. He also submitted numerous
    documents that discussed China’s treatment of members of underground Christian
    churches.
    A motion to reopen immigration proceedings generally must be filed within 90
    days of a final removal order. 8 U.S.C. § 1229a(c)(7)(C)(i). But the time limitation
    does not apply when the motion is “based on changed country conditions arising in
    the country of nationality . . . , if such evidence is material and was not available and
    would not have been discovered or presented at the previous proceeding.” Id.
    § 1229a(c)(7)(C)(ii). The BIA held that Mr. Chen did not satisfy this exception
    because the evidence did not show a material change in conditions for Christians in
    China since 1993. Therefore, the motion was untimely. Further, the BIA concluded
    that Mr. Chen failed to show prima facie eligibility for asylum or withholding of
    1
    The motion to reopen also discussed Mr. Chen’s fear of sterilization for
    violating China’s one-child policy, but before this court Mr. Chen has abandoned this
    issue by failing to brief any argument regarding it. See Rodas-Orellana v. Holder,
    
    780 F.3d 982
    , 985 n.1 (10th Cir. 2015).
    2
    exclusion and deportation because he had not demonstrated a well-founded fear of
    mistreatment amounting to persecution upon his return to China. He also failed to
    show eligibility for relief under the Convention Against Torture (CAT) because he
    did not demonstrate that it is more likely than not that he would be tortured with the
    acquiescence or willful blindness of a government official. The BIA therefore denied
    the motion to reopen.
    II. DISCUSSION
    As stated, the BIA gave two reasons for denying Mr. Chen’s motion. Because
    the second reason (failure to show prima facie eligibility for relief) justifies the
    denial of reopening, we need not address the first reason (untimeliness). See INS v.
    Abudu, 
    485 U.S. 94
    , 104 (1988) (stating that failure to establish a prima facie case for
    the relief sought is an independent ground for the BIA to deny a motion to reopen).
    We review the BIA’s denial of a motion to reopen for abuse of discretion.
    Infanzon v. Ashcroft, 
    386 F.3d 1359
    , 1362 (10th Cir. 2004). “The BIA abuses its
    discretion when its decision provides no rational explanation, inexplicably departs
    from established policies, is devoid of any reasoning, or contains only summary or
    conclusory statements.” 
    Id.
     (internal quotation marks omitted). “[M]otions to reopen
    immigration cases are plainly disfavored, and [the movant] bears a heavy burden to
    show the BIA abused its discretion.” Maatougui v. Holder, 
    738 F.3d 1230
    , 1239
    (10th Cir. 2013) (brackets and internal quotation marks omitted). The movant must
    present new facts, supported with evidence, that demonstrate the result of the case
    would likely change. See 
    id. at 1239-40
    .
    3
    To be eligible for asylum, Mr. Chen must show he has a well-founded fear of
    future persecution. See Tulengkey v. Gonzales, 
    425 F.3d 1277
    , 1280 (10th Cir.
    2005). “Persecution is the infliction of suffering or harm upon those who differ (in
    race, religion, or political opinion) in a way regarded as offensive, and requires more
    than just restrictions or threats to life and liberty.” 
    Id.
     (internal quotation marks
    omitted). A well-founded fear of persecution “must be both subjectively genuine and
    objectively reasonable.” 
    Id. at 1281
    . “For asylum purposes, it need not be shown
    that the situation will probably result in persecution, but it is enough that persecution
    is a reasonable possibility.” Ritonga v. Holder, 
    633 F.3d 971
    , 976 (10th Cir. 2011)
    (internal quotation marks omitted). The standards for reviewing a denial of asylum
    are well-established:
    The BIA’s determination that the applicant is not eligible for asylum
    must be upheld if supported by reasonable, substantial, and probative
    evidence on the record considered as a whole. It can be reversed only if
    the evidence presented by the applicant was such that a reasonable
    factfinder would have to conclude that the requisite fear of persecution
    existed.
    Yuk v. Ashcroft, 
    355 F.3d 1222
    , 1233 (10th Cir. 2004) (brackets and internal
    quotation marks omitted).
    To be eligible for withholding of deportation, Mr. Chen “must prove a clear
    probability of persecution upon deportation.” Rezai v. INS, 
    62 F.3d 1286
    , 1289
    (10th Cir. 1995) (internal quotation marks omitted). “[T]his ‘clear probability’ test is
    more stringent than the well-founded fear test used in the asylum context.” 
    Id.
    4
    Therefore, if Mr. Chen fails to prove eligibility for asylum, he necessarily fails to
    prove eligibility for withholding of deportation. See 
    id.
    Finally, “[t]o be eligible for relief under the CAT, an individual must establish
    that it is more likely than not that he or she would be tortured if removed to the
    proposed country of removal.” Zhi Wei Pang v. Holder, 
    665 F.3d 1226
    , 1233-34
    (10th Cir. 2012) (internal quotation marks omitted). “Torture” is defined as “[a]ny
    act by which severe pain or suffering, whether physical or mental, is intentionally
    inflicted on a person . . . based on instigation . . . of or with the consent or
    acquiescence of a public official or other person acting in an official capacity.”
    
    8 C.F.R. § 1208.18
    (a)(1).
    Mr. Chen argues that “the evidence indicates that the Chinese government
    does not tolerate unauthorized religious groups. The evidence also establishes that
    the government has resorted to harassment, detention, and forced labor to curb
    unauthorized religious activities.” Opening Br. at 20. In support, he points to
    accounts of China’s restrictions on underground churches and mistreatment of church
    members.2 The BIA recognized that “there have been reports of the detention of
    some leaders of underground, or ‘house,’ churches and harassment of some church
    members,” R. at 4, but it concluded that such evidence was insufficient to establish
    that Mr. Chen “has a well-founded fear of mistreatment amounting to persecution,”
    
    id. at 5
    .
    2
    Mr. Chen’s opening brief quotes various State Department reports that are
    not in the administrative record, but we do not consider materials outside the
    administrative record. See Ritonga, 
    633 F.3d at
    977 n.3.
    5
    Undeniably, Christians who do not affiliate with official churches face
    difficulties in China. But the BIA’s determination that Mr. Chen does not have a
    well-founded fear of mistreatment rising to the level of persecution is not a
    misstatement of the law and is supported by substantial evidence. Harassment and
    even detention do not necessarily rise to the level of persecution. See Ritonga,
    
    633 F.3d at 975
     (observing that persecution “entail[s] more than just restrictions or
    threats to life and liberty” (internal quotation marks omitted)); Tulengkey, 
    425 F.3d at
    1280 (citing authority that “denigration, harassment, and threats did not constitute
    persecution” (internal quotation marks omitted)); Kapcia v. INS, 
    944 F.2d 702
    , 704,
    708 (10th Cir. 1991) (concluding petitioners who briefly were detained and beaten
    failed to establish past persecution). Further, to the extent that Christians may be
    discriminated against, “institutional discrimination . . . , while deplorable in any free
    society, did not constitute persecution affording petitioner eligibility for asylum.”
    Vatulev v. Ashcroft, 
    354 F.3d 1207
    , 1210 (10th Cir. 2003). Moreover, the State
    Department’s International Religious Freedom Report for 2012 recognizes that the
    likelihood of harassment varies throughout the country, with local authorities in some
    areas declining to interfere with small unregistered groups. It also indicates that
    mere members of underground churches may be treated less harshly than leaders and
    organizers.
    Mr. Chen complains that the BIA did not address the non-governmental
    materials he submitted. The BIA, however, is entitled to rely on the State
    6
    Department’s country reports. See Yuk, 
    355 F.3d at 1235-36
     (stating that State
    Department reports can constitute substantial evidence).
    The BIA’s “rationale is clear, there is no departure from established policies,
    and its statements are a correct interpretation of the law.” Infanzon, 
    386 F.3d at 1362
    . Accordingly, the BIA did not abuse its discretion in concluding that Mr. Chen
    failed to make a prima facie case for asylum. That being so, it also did not abuse its
    discretion in concluding that he failed to make a prima facie case for withholding of
    exclusion and deportation. And as Mr. Chen relies on the same information to
    support his CAT claim, the BIA did not abuse its discretion in concluding that he
    failed to show it is more likely than not that he would be subjected to torture by, or
    with the acquiescence of, a public official.
    The petition for review is denied.
    Entered for the Court
    Jerome A. Holmes
    Circuit Judge
    7