Len Mei Chen v. Holder

10-4443-ag
Chen v. Holder
BIA
Schoppert, IJ
A077 977 768
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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 23rd day of April, two thousand twelve.
PRESENT:
JOSEPH M. McLAUGHLIN,
PIERRE N. LEVAL,
ROSEMARY S. POOLER,
Circuit Judges.
_______________________________________
LEN MEI CHEN, AKA NEN MEI CHEN,
Petitioner,
v. 10-4443-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Michael Brown, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Carl H. McIntyre, Jr.,
Assistant Director; Regina Byrd,
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.
Petitioner Len Mei Chen, a native and citizen of the
People’s Republic of China, seeks review of an October 13,
2010, order of the BIA affirming the May 6, 2009, decision
of Immigration Judge (“IJ”) Douglas B. Schoppert, denying
her application for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). In re
Len Mei Chen, No. A077 977 768 (B.I.A. Oct. 13, 2010), aff’g
No. A077 977 768 (Immig. Ct. N.Y. City May 6, 2009). We
assume the parties’ familiarity with the underlying facts
and procedural history of the case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as modified by the BIA, and have assumed
Chen’s credibility. 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); see also Yanqin Weng v. Holder, 562 F.3d
510, 513 (2d Cir. 2009). Because Chen does not challenge
the agency’s denial of CAT relief, we consider only whether
the agency erred in determining that Chen failed to
establish her eligibility for asylum and withholding of
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removal.
The BIA assumed Chen’s credibility, but found that she
had not demonstrated an objectively reasonable possibility
that she would suffer persecution on account of her practice
of Falun Gong in China, because the evidence Chen submitted
to show that the Chinese government was aware of her
practice — a village committee notice and a sworn affidavit
from her father — were entitled to minimal weight; and the
village committee notice did not specify the penalties to
which Chen would be subject based on her practice of Falun
Gong, and was thus insufficient to establish that any harm
she might suffer would rise to the level of persecution.
Chen argues that the BIA erred in declining to accord
probative weight to the village committee notice and the
affidavit from her father. However, the weight afforded to
an alien’s evidence in immigration proceedings lies largely
within the discretion of the agency. Xiao Ji Chen v. U.S.
Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006). As the
only objective evidence Chen submitted relevant to her Falun
Gong claim was the 2007 State Department Report on China,
the BIA did not err in finding she did not meet her burden
of showing an objectively reasonable fear of future
persecution. See Hongsheng Leng v. Mukasey, 528 F.3d 135,
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143 (2d Cir. 2008); Jian Hui Shao v. Mukasey, 546 F.3d 138,
162 (2d Cir. 2008). Moreover, the BIA evaluated the village
committee notice and reasonably found that although it
stated that the Chinese government knew of Chen’s Falun Gong
practice, it did not specify what, if any, penalties she
would face as a result of that practice. As a result, it
did not demonstrate that Chen would face any harm rising to
the level of persecution. See Jian Hui Shao, 546 F.3d at
172; Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.
2004).
Chen also argues that the BIA erred by finding that
there was not a pattern or practice of persecution of Falun
Gong practitioners in China. See 8 C.F.R. § 208.16(b)(2)(i)
(providing that an applicant shall not be required to show
that he will be singled out individually for persecution if
he establishes that there is a pattern or practice of
persecution of a group of similarly situated persons);
Mufied v. Mukasey, 508 F.3d 88, 91 (2d Cir. 2007).
The BIA found that individuals similarly situated to
Chen would, in this case, be Falun Gong practitioners
generally, and concluded that while record evidence showed
that the Chinese government had “subjected some Falun Gong
practitioners to criminal, administrative, and
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extra-judicial punishments,” the evidence did not
demonstrate “systemic or pervasive persecution” rising to
the level of a pattern or practice. The BIA’s conclusion is
supported by the 2007 State Department Report on China — the
only relevant evidence in the record of country conditions
for Falun Gong practitioners — which provides that the level
of repression of Falun Gong practitioners varies
significantly from region to region, and only some
practitioners are subject to punishment. See Santoso v.
Holder, 580 F.3d 110, 112 (2d Cir. 2009).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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