Ming Guang Chen v. Holder ( 2010 )

09-3414-ag
Chen v. Holder
BIA
Weisel, IJ
A 078 203 336
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 27 th day of July, two thousand ten.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 REENA RAGGI,
9 PETER W. HALL,
10 Circuit Judges.
11 _______________________________________
12
13 MING GUANG CHEN,
14 Petitioner,
15
16 v. 09-3414-ag
17 NAC
18 ERIC H. HOLDER, JR., U.S. ATTORNEY
19 GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Ming Guang Chen, Pro se.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Lyle D. Jentzer, Senior
27 Litigation Counsel; Aaron R. Petty,
28 Trial Attorney, Office of
29 Immigration Litigation, Washington
30 D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Ming Guang Chen, a native and citizen of the
6 People’s Republic of China, seeks review of the July 13,
7 2009 order of the BIA denying his motion to remand and
8 affirming the November 13, 2007 decision of Immigration
9 Judge (“IJ”) Robert Weisel denying Chen’s application for
10 asylum, withholding of removal, and relief under the
11 Convention Against Torture (“CAT”). In re Ming Guang Chen,
12 No. A 078 203 336 (B.I.A. July 13, 2009), aff’g No. A 078
13 203 336 (Immig. Ct. N.Y. City Nov. 13, 2007). We assume the
14 parties’ familiarity with the underlying facts and
15 procedural history in this case.
16 Under the circumstances of this case, we review the
17 IJ’s decision as modified by the BIA. See Dong Gao v. BIA,
18 482 F.3d 122, 125 (2d Cir. 2007). The applicable standards
19 of review are well-established. See 8 U.S.C.
20 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
21 (2d Cir. 2009).
22 The agency did not err in denying Chen’s asylum
2
1 application as a matter of discretion. Under 8 U.S.C.
2 § 1252(b)(4)(d), the agency’s discretionary judgment whether
3 to grant asylum “shall be conclusive unless manifestly
4 contrary to the law and an abuse of discretion.” However,
5 the discretionary decision to grant or deny asylum to
6 someone who falls within the refugee definition requires an
7 analysis of the “totality of the circumstances,” in which
8 adverse factors are balanced against favorable ones. Wu
9 Zheng Huang v. INS, 436 F.3d 89, 98 (2d Cir. 2006). Here,
10 the IJ found that Chen’s “admission that he placed false
11 information on an application for political asylum” was
12 “serious.” The IJ noted that he gave Chen an opportunity to
13 explain, but that the explanation “was in conflict again
14 with the second application attempting to remediate the
15 first falsity.” This finding is supported by the record.
16 Chen testified that he submitted false information in his
17 initial asylum application because he was instructed to do
18 so by his previous attorney. However, he made no such
19 assertion in his second asylum application. Instead, he
20 stated that he submitted the false application because he
21 wanted “a better chance to win asylum.” Therefore, the
22 agency did not abuse its discretion in denying Chen’s
3
1 application for asylum and withholding of removal. 8 U.S.C.
2 § 1252(b)(4)(d); see also Wu Zheng Huang, 436 F.3d at 98; In
3 re Pula, 19 I. & N. Dec. 467, 474 (BIA 1987) (superseded by
4 regulation on other grounds).
5 The agency also did not err in denying Chen’s
6 application for CAT relief. We have held that although
7 country conditions reports may indicate that some prisoners
8 in China have been tortured, the applicable standard is
9 whether someone in the petitioner’s “particular alleged
10 circumstances is more likely than not to be tortured if
11 imprisoned in China.” Mu-Xing Wang v. Ashcroft, 320 F.3d
12 130, 143-44 (2d Cir. 2003) (emphasis in original). Chen did
13 not argue before the agency that his unique circumstances
14 make it more likely than not that he will be tortured in
15 China.
16 Finally, the BIA did not abuse its discretion in
17 denying Chen’s motion to remand. Motions to remand are held
18 to the same substantive standard as motions to reopen, i.e.,
19 abuse of discretion. See Li Yong Cao v. U.S. Dep’t of
20 Justice, 421 F.3d 149, 151 (2d Cir. 2005). Furthermore, the
21 BIA has held that it may deny motions to remand when the
22 movant does not establish a prima facie case for the relief
4
1 sought. Matter of Coelho, 20 I. & N. Dec. 464 (BIA 1992).
2 Here, the BIA found that Chen failed to establish his prima
3 facie eligibility for relief on the basis of his own
4 affidavit because he had previously submitted false evidence
5 in support of his claim for relief. That decision was not
6 an abuse of discretion. See Qin Wen Zheng v. Gonzales, 500
7 F.3d 143, 147-48 (2d Cir. 2007) (holding that the BIA did
8 not abuse its discretion in denying a motion to reopen
9 supported by allegedly unavailable evidence regarding
10 changed country conditions where there had been a previous
11 adverse credibility finding in the underlying asylum
12 hearing); Rui Ying Lin v. Gonzales, 445 F.3d 127, 133 (2d
13 Cir. 2006) (discussing the maxim of falsus in uno, falsus in
14 omnibus (false in one thing, false in everything)); Siewe v.
15 Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (relying on the
16 maxim to find that once an IJ concludes that a document is
17 false, he or she is “free to deem suspect other documents
18 (and to disbelieve other testimony) that depend for
19 probative weight upon [the applicant’s] veracity”).
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of
22 removal that the Court previously granted in this petition
5
1 is VACATED, and any pending motion for a stay of removal in
2 this petition is DISMISSED as moot. Any pending request for
3 oral argument in this petition is DENIED in accordance with
4 Federal Rule of Appellate Procedure 34(a)(2), and Second
5 Circuit Local Rule 34.1(b).
6
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
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