Chen v. Barr ( 2020 )

19-3589
Chen v. Barr
BIA
Wright, IJ
A206 280 282
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 TO 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 Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 21st day of December, two thousand twenty.
5
6 PRESENT:
7 DEBRA ANN LIVINGSTON,
8 Chief Judge,
9 GUIDO CALABRESI,
10 ROBERT A. KATZMANN,
11 Circuit Judges.
12 _____________________________________
13
14 JIAWANG CHEN,
15
16 Petitioner,
17
18 v. 19-3589
19 NAC
20
21 WILLIAM P. BARR, UNITED STATES
22 ATTORNEY GENERAL,
23
24 Respondent.
25 _____________________________________
26
27
28 FOR PETITIONER: Gary J. Yerman, New York, NY.
29
1 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
2 Assistant Attorney General;
3 Stephen J. Flynn, Assistant
4 Director; Annette M. Wietecha,
5 Trial Attorney, Office of
6 Immigration Litigation, United
7 States Department of Justice,
8 Washington, DC.
9
10 UPON DUE CONSIDERATION of this petition for review of a
11 Board of Immigration Appeals (“BIA”) decision, it is hereby
12 ORDERED, ADJUDGED, AND DECREED that the petition for review
13 is DENIED.
14 Petitioner Jiawang Chen, a native and citizen of the
15 People’s Republic of China, seeks review of an October 22,
16 2019 decision of the BIA affirming a March 5, 2018 decision
17 of an Immigration Judge (“IJ”) denying asylum, withholding of
18 removal, and relief under the Convention Against Torture
19 (“CAT”). In re Jiawang Chen, No. A206 280 282 (B.I.A. Oct.
20 22, 2019), aff’g No. A206 280 282 (Immig. Ct. N.Y.C. Mar. 5,
21 2018). We assume the parties’ familiarity with the
22 underlying facts and procedural history.
23 We have reviewed both the IJ’s and the BIA’s opinions
24 “for the sake of completeness.” Wangchuck v. Dep’t of
25 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The
26 applicable standards of review are well established. See
2
1 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562
2 F.3d 510, 513 (2d Cir. 2009).
3 It is undisputed that Chen is not eligible for asylum
4 solely on the basis of his wife’s forced sterilization. See
5 Shi Liang Lin v. U.S. Dep’t of Just., 494 F.3d 296, 309-10
6 (2d Cir. 2007). Nevertheless, he may still qualify for
7 asylum or withholding of removal if (1) he engaged in
8 “resistance” to the family planning policy, and (2) he
9 suffered harm rising to the level of persecution, or he has
10 a well-founded fear or likelihood of suffering such harm as
11 a direct result of his resistance. See 8 U.S.C.
12 § 1101(a)(42); see also Shi Liang Lin, 494 F.3d at 313.
13 Even assuming that Chen was targeted for engaging in
14 resistance to the family planning policy, he failed to
15 establish that he suffered persecution on account of that
16 resistance. He did not testify that family planning
17 officials caused him any injury, see Jian Qiu Liu v. Holder,
18 632 F.3d 820, 822 (2d Cir. 2011) (upholding the agency’s
19 conclusion that a minor altercation with family planning
20 authorities did not rise to the level of persecution), and he
21 did not allege that the fine imposed caused him “severe
22 economic disadvantage” as required to demonstrate economic
3
1 persecution, In re T-Z-, 24 I. & N. Dec. 163, 170-75 (B.I.A.
2 2007), particularly as he did not pay the fine, see Huo Qiang
3 Chen v. Holder, 773 F.3d 396, 406 (2d Cir. 2014) (“[A] person
4 has not suffered past persecution until payment or collection
5 efforts actually have such persecutive effects.”).
6 Because Chen did not demonstrate past persecution, he
7 was not entitled to a presumption of a well-founded fear of
8 future persecution. See 8 C.F.R. § 1208.13(b)(1). And
9 although Chen claimed he had a fear of future persecution
10 based on the outstanding fine, the agency reasonably found
11 that this fear was not well-founded. Chen remained unharmed
12 in China from 2009, when the fine was levied, until his
13 departure from that country in 2013. And his wife, who was
14 also subject to the fine, has remained unharmed in China since
15 then. See Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d
16 Cir. 1999) (finding a fear of future persecution weakened
17 when similarly situated family members remain unharmed in
18 petitioner’s native country); see also Jian Xing Huang v.
19 U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (holding that a
20 fear is not objectively reasonable if it lacks “solid support”
21 in the record and is merely “speculative at best”). That
22 finding was dispositive of asylum, withholding of removal,
4
1 and CAT protection.* See Lecaj v. Holder, 616 F.3d 111, 119–
2 20 (2d Cir. 2010).
3 For the foregoing reasons, the petition for review is
4 DENIED. All pending motions and applications are DENIED and
5 stays VACATED.
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe,
8 Clerk of Court
* Contrary to the BIA’s and the Government’s position, Chen
did not waive his CAT claim before the BIA. The IJ denied
CAT relief in part because Chen failed to satisfy his burden
of proving a well-founded fear of persecution required for
asylum. Chen’s challenge to that conclusion necessarily
included a challenge to the denial of CAT relief.
5