Chen v. Sessions ( 2018 )

16-3330
Chen v. Sessions
BIA
Van Wyke, IJ
A087 974 665
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
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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 2nd day of October, two thousand eighteen.
PRESENT:
JON O. NEWMAN,
DEBRA ANN LIVINGSTON,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
HUI CHEN,
Petitioner,
v. 16-3330
NAC
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Joshua Bardavid, New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Shelley R. Goad,
Assistant Director; Elizabeth R.
Chapman, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Hui Chen, a native and citizen of the People’s
Republic of China, seeks review of a September 13, 2016,
decision of the BIA affirming a July 22, 2015, decision of an
Immigration Judge (“IJ”) denying Chen’s application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Hui Chen, No. A
087 974 665 (B.I.A. Sept. 13, 2016), aff’g No. A 087 974 665
(Immig. Ct. N.Y. City July 22, 2015). We assume the parties’
familiarity with the underlying facts and procedural history
in this case, which are referenced only as necessary to
explain our decision.
Under the circumstances of this case, we have reviewed
both the IJ’s and BIA’s decisions “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
524, 528 (2d Cir. 2006). The standards of review are well
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established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
Holder, 562 F.3d 510, 513 (2d Cir. 2009). We address Chen’s
family planning and Christianity claims in turn.
I. Family Planning Claim
Chen alleged that in 2008, when his wife became pregnant
with a second child in violation of the family planning
policy, they relocated to avoid detection, but family
planning officials discovered the violation and beat Chen
when he tried to stop them from forcing his wife to have an
abortion. The agency concluded that, even assuming the truth
of these allegations, the beating did not amount to
persecution.
Chen cannot establish past persecution for himself based
on his wife’s forced abortion. See Shi Liang Lin v. U.S.
Dep’t of Justice, 494 F.3d 296, 309-10, 313-15 (2d Cir. 2007)
(holding that to demonstrate persecution, husbands of women
who are forced to undergo abortions must show that they were
personally harmed on account of their own resistance to the
family planning policy). Moreover, not every incident of
physical violence constitutes persecution. See Jian Qiu Liu
v. Holder, 632 F.3d 820, 822 (2d Cir. 2011) (“We have never
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held that a beating that occurs within the context of an
arrest or detention constitutes persecution per se.”). The
agency reasonably concluded that Chen’s brief confrontation
with family planning officials outside of an arrest or
detention and his failure to identify any specific injuries
or need for medical treatment was insufficient to show harm
rising to the level of persecution. Id. (upholding BIA’s
conclusion that single altercation with family planning
officials resulting only in minor bruising did not constitute
past persecution); cf. Beskovic v. Gonzales, 467 F.3d 223,
226-27 (2d Cir. 2006) (requiring careful consideration of
even single beating when it occurs in context of arrest and
detention).
We decline to address Chen’s fear of sterilization
because, as the Government argues, the IJ concluded that
Chen’s fear was not credible, Chen did not challenge that
determination on appeal to the BIA, and the BIA found the
issue waived. See Lin Zhong v. U.S. Dep’t of Justice, 480
F.3d 104, 107 n.1, 118-22 (2d Cir. 2007) (holding that issue
exhaustion, while not jurisdictional, is mandatory).
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II. Christianity Claim
Even assuming that Chen’s allegations about the police
raid on his house church are credible, Chen alleged that he
escaped from the raid and was never beaten or detained for
his religious practice. Accordingly, he did not identify any
past persecution and was therefore required to demonstrate
that he “subjectively fears persecution” and “that his fear
is objectively reasonable.” Ramsameachire v. Ashcroft, 357
F.3d 169, 178 (2d Cir. 2004). The objective component can
be satisfied by establishing either “a reasonable possibility
he . . . would be singled out individually for persecution”
or “a pattern or practice . . . of persecution of a group of
persons similarly situated to the applicant.” 8 C.F.R.
§ 1208.13(b)(2)(iii); Y.C. v. Holder, 741 F.3d 324, 332 (2d
Cir. 2013).
The 2008 church raid alone does not establish a
reasonable possibility that Chen will suffer harm rising to
the level of persecution in the future. Chen did not provide
any details about the raid (i.e., how many members were
arrested, how long they were detained, or how they were
treated in detention) and Chen testified that his wife and
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her relatives have continued to attend the same house church
and have engaged in evangelizing and outreach activities
without any further incidents. See Melgar de Torres v. Reno,
191 F.3d 307, 313 (2d Cir. 1999) (evidence that similarly
situated family members have not been harmed undercuts asylum
applicant’s fear of persecution); see also Jian Xing Huang v.
U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (absent “solid
support in the record,” an applicant’s fear of future
persecution is “speculative at best”). Further, because the
country conditions evidence reflected that the Chinese
government’s policies toward Christians and house churches
vary by province and did not identify any reports of arrest
in Chen’s home province (Fujian), the agency reasonably
concluded that Chen did not establish a pattern or practice
of persecution of similarly situated Christians. See Jian
Hui Shao v. Mukasey, 546 F.3d 138, 159-62, 174 (2d Cir. 2008)
(upholding BIA’s requirement that applicant demonstrate that
officials in his local area enforce a government policy when
evidence demonstrates local variations in enforcement of that
policy).
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Because Chen failed to meet his burden of proof for
asylum, he necessarily failed to meet the higher burdens for
withholding of removal and CAT relief. Lecaj v. Holder, 616
F.3d 111, 119-20 (2d Cir. 2010).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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