Huan Chen v. Lynch ( 2015 )

13-2719
Chen v. Lynch
BIA
Connelly, IJ
A073 056 172
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 Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 24th day of August, two thousand fifteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
RICHARD C. WESLEY,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
HUAN CHEN,
Petitioner,
v. 13-2719
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Shari L. Astalos, Kerry W. Bretz,
Bretz & Coven, LLP, New York, N.Y.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Ernesto H. Molina, Jr.,
Assistant Director; Sabatino F. Leo,
Trial Attorney, Office of
Immigration Litigation, 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.
Huan Chen, a native and citizen of China, seeks review
of a June 17, 2013, decision of the BIA affirming, in part,
an Immigration Judge’s (“IJ”) December 7, 2012, denial of
withholding of removal and Convention Against Torture
(“CAT”) relief. In re Huan Chen, No. A073 056 172 (B.I.A.
Jun. 17, 2013), aff’g No. A073 056 172 (Immig. Ct. Batavia
Dec. 7, 2012). We assume the parties’ familiarity with the
underlying facts, procedural history, and issues presented
for review.
Under the circumstances of this case, we have reviewed
the IJ’s decision as modified by the BIA, i.e., minus the
IJ’s determination that one of Chen’s convictions was a
particularly serious crime. See Xue Hong Yang v. U.S. Dep’t
of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The
applicable standards of review are well established. See 8
U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
513 (2d Cir. 2009).
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We generally lack jurisdiction to review the removal
order of an alien who, like Chen, was found removable by
reason of having committed an aggravated felony. 8 U.S.C.
§§ 1227(a)(2)(A)(iii)& 1252(a)(2)(C). However, we retain
jurisdiction to review constitutional claims and questions
of law. 8 U.S.C. § 1252(a)(2)(D). Here, we lack
jurisdiction over Chen’s challenges to the denial of
withholding of removal and assume jurisdiction to consider
the merits of Chen’s request for CAT relief.
Chen contests the weight accorded certain evidence
(specifically, the weight given to evidence of general
country conditions in China and the existence of a Chinese
criminal statute). Such arguments pose challenges to the
agency’s factual findings and do not raise reviewable
constitutional issues or questions of law. See Barco-
Sandoval v. Gonzales, 516 F.3d 35, 39 (2d Cir. 2008) (“[W]e
remain deprived of jurisdiction to review decisions under
the INA when the petition for review essentially disputes
the correctness of an IJ’s fact-finding”). Although Chen
frames some of his claims to suggest he is raising a
question of law—for example, that he met the legal standard
for showing a pattern or practice of abuse toward the
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mentally ill and criminals in China—the root of his
challenge is that the agency did not properly weigh country
conditions evidence, which is not a question of law. See
Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329-30
(2d Cir. 2006).
In response to the Government’s argument that we lack
jurisdiction, Chen proffers a constitutional claim: that the
BIA deprived him of due process by crediting his testimony
that the “last time [he] left the United States was in
November of 2010” instead of relying on his contradictory
testimony and evidence suggesting he was incarcerated in the
United States at that time. Although Chen employs the
rhetoric of a constitutional issue by styling this as a “due
process claim,” he is really challenging the weight accorded
the evidence, i.e., he argues that the agency should have
credited one part of his testimony over another. Xiao Ji
Chen, 471 F.3d at 330.
In any event, Chen was not deprived of due process.
Due process requires, at a minimum, that an alien “be
afforded the opportunity to be heard at a meaningful time
and in a meaningful manner . . . by an impartial and
disinterested tribunal,” free from “the appearance of bias
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or hostility....” Ali v. Mukasey, 529 F.3d 478, 490 (2d
Cir. 2008) (citations and internal quotations omitted). The
record shows that not only did Chen testify that he spent
four months in China beginning in November 2010, but his
attorney made the same representation, Chen submitted a
sworn affidavit confirming the trip, and Chen’s application
for relief also stated the same. The determination of
whether to credit Chen’s testimony and the evidence
supporting it is a question of fact for the agency. Cf.
Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007)
(“Decisions as to . . . which of competing inferences to
draw are entirely within the province of the trier of fact.”
(internal quotations and citation omitted)). That the
agency credited this body of evidence does not establish
that Chen was deprived of a full and fair opportunity to be
heard before an impartial tribunal. Altogether, Chen has
not met the standard for withholding of removal.
As to CAT relief, Chen argues that the pervasive
atmosphere of corruption and human rights violations in
China are sufficient to meet his burden. However, general
evidence of human rights violations, including general
instances of torture, does not warrant CAT relief where
there is no evidence that someone in petitioner’s particular
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circumstances is more likely than not to suffer torture upon
removal. Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d
156, 160 (2d Cir. 2005). As Chen has not proffered any
particularized evidence that he will likely face torture, he
has not met his burden. Additionally, as discussed above,
Chen’s ability to return to China on four occasions without
incident undercuts his alleged fear of torture.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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