Wen Guang Chen v. Holder , 438 F. App'x 36 ( 2011 )

10-2758-ag
Chen v. Holder
BIA
Van Wyke, IJ
A073 190 139
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 22nd day of September, two thousand eleven.
PRESENT:
JON O. NEWMAN,
ROBERT A. KATZMANN,
GERARD E. LYNCH,
Circuit Judges.
______________________________________
WEN GUANG CHEN,
Petitioner,
v. 10-2758-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL, UNITED STATES
DEPARTMENT OF JUSTICE,
Respondents.
______________________________________
FOR PETITIONER: Wen Guang Chen, pro se, Brooklyn, N.Y.
FOR RESPONDENTS: Tony West, Assistant Attorney General;
Richard M. Evans, Assistant Director;
Jeffrey J. Bernstein, Attorney, Office of
Immigration Litigation, Civil Division,
United States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DENIED.
Petitioner Wen Guang Chen, a native and citizen of
China, seeks review of a June 17, 2010 order of the BIA
affirming the August 13, 2008 decision of Immigration Judge
(“IJ”) William P. Van Wyke denying his application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Wen Guang Chen,
No. A073 190 139 (B.I.A. June 17, 2010), aff’g No. A073 190
139 (Immig. Ct. N.Y. City Aug. 13, 2008). We assume the
parties’ familiarity with the underlying facts and
procedural history of this case.
Under the circumstances of this case, we review the
IJ’s decision as supplemented by the BIA’s decision. See
Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well-established. See 8
U.S.C. § 1252(b)(4)(B); Jian Hui Shao v. Mukasey, 546 F.3d
138, 157-68 (2d Cir. 2008); Salimatou Bah v. Mukasey, 528
F.3d 99, 110 (2d Cir. 2008).
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This petition arises from proceedings following the
IJ’s grant of reopening. Accordingly, the IJ did not err in
declining to consider Chen’s arguments that he feared
persecution based on China’s family planning policy and his
participation in the 1989 pro-democracy movement because
Chen had presented, and waived, those same arguments in his
original proceedings and did not present any new evidence in
the reopened proceedings. See Singh v. Gonzales, 468 F.3d
135, 139 (2d Cir. 2006) (“Motions to reopen are designed to
allow consideration of circumstances that have arisen
subsequent to the applicant’s previous hearing.”); Gomes v.
Gonzales, 429 F.3d 1264, 1267 (9th Cir. 2005) (concluding
that BIA did not err in declining to address petitioners’
already litigated claims in reopened proceedings where
reopening had been granted to allow the petitioners to
present new evidence).
Additionally, the agency did not err in finding that
Chen did not establish his eligibility for relief based on
his practice of Christianity or his illegal departure from
China. Although Chen argues that the agency failed to
consider all of his evidence, the record does not compel
that conclusion as the IJ specifically referenced the
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testimony of both Chen and his cousin, Chen’s evidence of
conditions in China, and the letters Chen submitted as
corroboration. See Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 337 n.17 (2d Cir. 2006)(“[W]e presume that an
IJ has taken into account all of the evidence before him,
unless the record compellingly suggests otherwise.”).
Additionally, substantial evidence supports the
agency’s conclusion that Chen did not establish a well-
founded fear of persecution as a Christian. Because Chen
did not allege that he was personally subjected to past
persecution on account of his faith or that there was any
reason why he would be “singled out individually for
persecution,” he was required to establish a pattern or
practice of persecution of similarly situated persons. See
Hongsheng Leng v. Mukasey, 528 F.3d 135, 142 (2d Cir. 2008).
The agency reasonably concluded that the record did not
establish such a pattern because the evidence of the
mistreatment of some Christians in China does not compel the
conclusion that there is a pattern of persecution so
systematic or pervasive that the millions of Christians in
China are at risk.1 Cf. Santoso v. Holder, 580 F.3d 110,
1
Chen requests that we take judicial notice of State
Department reports in China to supplement the record, but
4
112 (2d Cir. 2009) (concluding that substantial evidence
supported the agency’s determination that the mistreatment
of some ethnic Chinese in Indonesia did not establish a
pattern or practice of persecution in part because Indonesia
is a large country).
Indeed, as the IJ found, the record provided
inconsistent information about Chen’s faith, undermining his
claim to an objectively reasonable fear of persecution.2
For example, in Chen’s 1993 asylum application he stated
that he was a Buddhist, but following reopening he testified
that he attended an underground church in China before 1993,
while his cousin testified that Chen had attended only
government sanctioned churches. Similarly, despite Chen’s
testimony that he had attended church in the United States
since 1994, his church only confirmed that he had attended
since 2007. The IJ reasonably concluded that this evidence
we decline to do so. See 8 U.S.C. § 1252(b)(4)(A)
(providing that this Court must “decide the petition only
on the administrative record on which the order of
removal is based”).
2
Because the IJ never made an explicit adverse
credibility determination, the BIA assumed that Chen’s
testimony was credible, and we assume the same now. See
Diallo v. INS, 232 F.3d 279, 288 (2d Cir. 2000).
Accordingly, we do not address Chen’s argument that the
agency erred in finding his testimony incredible.
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undermined Chen’s claim to a well-founded fear of
persecution because his lack of engagement with Christianity
suggested that he might not provoke action from the
authorities and he might attend a government sanctioned
church. Based on the evidence about Chen’s faith and the
evidence of country conditions, the agency reasonably
concluded that Chen did not establish a well-founded fear of
persecution, and thus did not err in denying his
applications for asylum and withholding of removal. See
Jian Hui Shao, 546 F.3d at 156.
Finally, the agency reasonably denied CAT relief
because Chen did not present any particularized evidence
establishing that he would be tortured because of his
illegal departure from China. See Mu Xiang Lin v. U.S.
Dep't of Justice, 432 F.3d 156, 60 (2d Cir. 2005) (holding
that a petitioner is not “entitled to CAT protection based
solely on the fact that she is part of the large class of
persons who have illegally departed China” and noting that
generalized country conditions reports stating that some
Chinese prisoners have been tortured “by no means establish
that prisoners in [the petitioner’s] circumstances . . . are
‘more likely than not’ to be tortured”).
6
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
7