Shen Chen v. Holder , 423 F. App'x 93 ( 2011 )

10-2557-ag
Chen v. Holder
BIA
Burr, IJ
A094 923 024
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 2nd day of June, two thousand eleven.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 GERARD E. LYNCH,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 SHEN CHEN, AKA SHENG CHEN,
14 Petitioner,
15
16 v. 10-2557-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: David A. Bredin, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Ernesto H. Molina, Jr.,
27 Assistant Director; Bernard A.
28 Joseph, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, 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 Shen Chen, a native and citizen of China, seeks review
6 of a June 10, 2010, order of the BIA affirming the June 27,
7 2008, decision of Immigration Judge (“IJ”) Sarah M. Burr,
8 which denied his application for asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re Shen Chen, No. A094 923 024 (B.I.A. June 10,
11 2010), aff’g No. A094 923 024 (Immig. Ct. N.Y. City June 27,
12 2008). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Where, as here, “the BIA adopts the decision of the IJ
15 and merely supplements the IJ’s decision, . . . we review
16 the decision of the IJ as supplemented by the BIA.” See Yan
17 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We
18 review factual findings for substantial evidence, and we
19 review questions of law de novo. 8 U.S.C. § 1252(b)(4)(B);
20 Yan Chen, 417 F.3d at 271.
21 We first address Chen’s claim for asylum. In Shi Liang
22 Lin, this Court determined that, under 8 U.S.C.
23 § 1101(a)(42), an individual is not per se eligible for
2
1 asylum based on the forced abortion or sterilization of a
2 spouse or partner because “applicants can become candidates
3 for asylum relief only based on persecution that they
4 themselves have suffered or must suffer.” Shi Liang Lin v.
5 U.S. Dep’t of Justice, 494 F.3d 296, 308 (2d Cir. 2007); see
6 also Matter of J-S-, 24 I. &. N. Dec. 520, 536-37 (A.G.
7 2008) (adopting this Court’s holding in Shi Liang Lin).
8 Because Chen cannot establish eligibility for asylum based
9 on his wife’s miscarriage alone, he must show both “other
10 resistance to a coercive population control program” and
11 persecution resulting from that resistance. Shi Liang Lin,
12 494 F.3d at 308 (internal quotation marks omitted).
13 The agency did not err in finding that Chen failed to
14 establish past persecution based on his assault by family
15 planning officials, his argument with the director of the
16 family planning office, or the threats of arrest and
17 sterilization by family planning officials. While Chen was
18 knocked down, kicked, and punched by family planning
19 officials, he did not need medical attention and the attack
20 did not occur in the context of detention. See Jian Qiu Liu
21 v. Holder, 632 F.3d 820, 821-22 (2d Cir. 2011) (finding “no
22 error in the BIA’s conclusion that [petitioner] failed to
3
1 establish persecution” when he alleged “minor bruising from
2 an altercation with family planning officials” that left “no
3 lasting physical effect”); see also Beskovic v. Gonzales,
4 467 F.3d 223, 226 (2d Cir. 2006) (stating that a minor
5 beating may rise to the level of persecution when it is
6 designed to cause pain, humiliation or other suffering, and
7 occurs in the context of a detention on the basis of a
8 protected ground). Furthermore, Chen presented no evidence
9 that he was harmed during his argument with the family
10 planning director, or that the family planning officials in
11 any way followed up on their threats. In fact, Chen
12 testified that he had no contact with family planning
13 officials in the six weeks between the date of that argument
14 and his departure from China. It was therefore reasonable
15 for the agency to conclude that the harm described by Chen
16 was insufficiently severe to constitute persecution. See
17 Jian Qiu Liu, 632 F.3d at 822; Ivanishvili v. U.S. Dep’t of
18 Justice, 433 F.3d 332, 341 (2d Cir. 2006).
19 Because the agency reasonably concluded that Chen did
20 not suffer past persecution, he is not entitled to a
21 presumption of future persecution. See 8 C.F.R.
22 § 208.13(b)(1). Chen makes no argument concerning a fear of
4
1 future persecution independent from his claim of past
2 persecution. Consequently, the agency reasonably concluded
3 that Chen did not meet his burden of establishing a well-
4 founded fear of future persecution. See Jian Xing Huang v.
5 INS, 421 F.3d 125, 129 (2d Cir. 2005) (concluding that a
6 fear is not objectively reasonable if it lacks “solid
7 support” in the record and is merely “speculative at best”).
8 Because Chen did not demonstrate past persecution, or a
9 well-founded fear of future persecution, the agency did not
10 err in denying his applications for asylum and withholding
11 of removal, which shared the same factual predicate. See
12 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
13 Next, we address Chen’s claim for CAT relief. Although
14 Chen states that it is possible he may be imprisoned and
15 tortured if he returns to China, he presents no argument or
16 evidence supporting this claim, other than a general
17 statement that he “wishes to have additional children and
18 fears [being] fined, imprisoned and possibly sterilized if
19 returned to . . . China.” This assertion is insufficient to
20 overturn the agency’s denial of CAT relief. See Mu Xiang
21 Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160 (2d Cir.
22 2005) (concluding that particularized evidence showing the
23 likelihood of torture is necessary to establish eligibility
24 for CAT protection).
5
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot.
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
8
6