Changjian Chen v. Lynch

13-1239
Chen v. Lynch
BIA
Hom, IJ
A087 785 377
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 16th day of July, two thousand fifteen.
PRESENT:
DEBRA ANN LIVINGSTON,
SUSAN L. CARNEY,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
CHANGJIAN CHEN,
Petitioner,
v. 13-1239
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,*
Respondent.
_____________________________________
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Loretta E. Lynch is automatically substituted
for former Attorney General Eric H. Holder, Jr., as the
Respondent in this case.
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FOR PETITIONER: Changjian Chen, Pro Se,
Flushing, NY
FOR RESPONDENT: Joyce R. Branda, Acting
Assistant Attorney General;
Emily Anne Radford, Assistant
Director; Jesse D. Lorenz, Trial
Attorney, Office of Immigration
Litigation, United States
Department of Justice,
Washington D.C.
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 DISMISSED in part and DENIED in part.
Petitioner Changjian Chen, a native and citizen of the
People’s Republic of China, seeks review of a March 12,
2013, decision of the BIA, affirming the November 10, 2011,
decision of an Immigration Judge (“IJ”), denying his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re
Changjian Chen, No. A087 785 377 (B.I.A. Mar. 12, 2013),
aff’g No. A087 785 377 (Immig. Ct. N.Y. City Nov. 10,
2011). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
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Under the circumstances of this case, we have reviewed
both the BIA’s and IJ’s opinions. See Zaman v. Mukasey,
514 F.3d 233, 237 (2d Cir. 2008) (per curiam). 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).
The petition raises three issues: (1) whether the IJ
abused his discretion in refusing to accept Chen’s evidence
submitted after the filing deadline; (2) whether the IJ
committed constitutional or legal error in pretermitting
Chen’s asylum application as untimely; and (3) whether the
IJ erred in finding that Chen did not establish either past
persecution or a likelihood of future persecution. We
dismiss the petition as to Chen’s claim for asylum. We
deny the petition as to all other matters.
I. Rejection of Late Documents
Under 8 C.F.R. § 1003.31(c), an IJ may set a deadline
for the submission of documents, and after the deadline,
may deem the opportunity to file them waived. The IJ
“retains the authority to determine how to treat an
untimely filing.” Imm. Ct. Pract. Man. Ch.3(d)(ii). We
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review an IJ’s rejection of documents as untimely for abuse
of discretion. Dedji v. Mukasey, 525 F.3d 187, 191 (2d
Cir. 2008). An IJ may depart from a deadline when an alien
demonstrates both good cause for a departure and a
likelihood of substantial prejudice from enforcement of the
deadline. Id. at 192.
On April 7, 2010, the IJ set the filing deadline as
March 1, 2011, giving Chen almost one year to submit
documents. Chen submitted a number of documents pertaining
to his date of entry into the United States and his past
persecution one day after the deadline. Chen then
submitted additional documents weeks later, purportedly
because he had been waiting for his mother’s letter to
arrive from China. The IJ did not abuse his discretion in
rejecting these late documents. Chen was represented by
counsel, had nearly a year to gather evidence prior to the
deadline, and did not request an extension or explain in
advance that the submissions would be late. See Dedji, 525
F.3d at 192.
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II. Untimely Asylum Application
Pursuant to 8 U.S.C. §§ 1158(a)(3) and 1252(a)(2)(D),
our jurisdiction to review the agency’s determination that
an asylum application was untimely is limited to
“constitutional claims or questions of law.” Chen raises
no reviewable claims. He argues that the IJ erred when he
discounted testimony that Chen witnessed the exit stamp
being placed in his passport in November 2008, but this
argument goes to the weight to be afforded the passport,
and does not present a question of law. Because Chen
contests only the weight the IJ gave to his passport, he
raises a factual issue this Court lacks jurisdiction to
review. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
315, 328-29, 332 (2d Cir. 2006).
III. Withholding of Removal
To establish eligibility for withholding of removal, an
applicant must show that he will likely be persecuted if
returned to his country. 8 U.S.C. § 1231(b)(3)(A); 8
C.F.R. § 1208.16(b)(1), (2). If the applicant is found to
have suffered past persecution, it is presumed that there
is a likelihood of future persecution on that basis. 8
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C.F.R. § 1208.16(b)(1). Absent past persecution, to
establish an independent fear of persecution, an applicant
must show that he subjectively fears persecution and that
this fear is objectively reasonable. Ramsameachire v.
Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
As Chen argues, the agency failed to consider all of
his testimony when considering whether he had established
past persecution. The IJ noted that Chen testified that he
was arrested during a religious service in his home,
detained for three days, forced to pay a fine, and required
to report monthly to the police. However, the IJ did not
reference an earlier incident in which Chen was detained
for five hours for distributing material promoting
Christianity, or that he was unable to enroll in college
due to the three-day detention for participation in an
illegal activity. As a result, the agency may not have
considered Chen’s past harm in the aggregate. See
Poradisova v. Gonzales, 420 F.3d 70, 79-80 (2d Cir. 2005);
Tian-Yong Chen v. INS, 359 F.3d 121, 127 (2d Cir. 2004).
Furthermore, we have concluded that physical mistreatment—
the main focus of the agency’s determination—is not
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dispositive of whether persecution has occurred. See Guan
Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 67 (2d
Cir. 2002).
However, even if all incidents are considered, Chen was
detained only for brief periods, was never physically
abused, and did not establish that he suffered a serious,
“non-physical form[] of harm such as ‘the deliberate
imposition of a substantial economic disadvantage.’”
Ivanishvili, 433 F.3d at 341 (quoting Guan Shan Liao, 293
F.3d at 67). The IJ explicitly considered the more severe
incidents of mistreatment and omitted discussion only of
Chen’s five-hour detention and inability to enroll in
college. While the agency’s decision is not without error,
we are “not required to remand where there is no realistic
possibility that, absent the errors, the IJ or BIA would
have reached a different conclusion.” Alam v. Gonzales,
438 F.3d 184, 187-88 (2d Cir. 2006).
Chen also argues that he established an independent
fear of future persecution on the basis of his religious
practice in the United States. In the absence of past
persecution, he was required to show a reasonable
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possibility that “authorities . . . are either aware of his
activities or are likely to become aware of his
activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 143
(2d Cir. 2008). An alien may make this showing either by
offering evidence that “‘he or she would be singled out
individually for persecution’” or that “proves the
existence of ‘a pattern or practice in his or her country .
. . of persecution of a group of persons similarly situated
to the applicant.’” Kyaw Zwar Tun v. INS, 445 F.3d 554,
564 (2d Cir. 2006) (quoting 8 C.F.R. § 208.13(b)(2)(iii)).
The IJ reasonably concluded that Chen failed to
demonstrate a pattern or practice of persecution of
Christians who attend unregistered churches. Jian Xing
Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005). Chen
submitted no evidence of such persecution because he
submitted no evidence of country conditions. Absent any
such evidence in the record, the IJ did not err in finding
that Chen failed to meet his burden of proof.
For the foregoing reasons, the petition for review is
DISMISSED at to Chen’s asylum claim and DENIED as to all
other claims. As we have completed our review, any stay of
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removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request
for oral argument in this petition is DENIED in accordance
with Federal Rule of Appellate Procedure 34(a)(2), and
Second Circuit Local Rule34.1(b).
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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