Chen v. Whitaker

Opinion

17-940 Chen v. Whitaker BIA

Loprest, IJ

A200 150 703

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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 28th day of November, two thousand eighteen. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 GERARD E. LYNCH, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 JUN CHEN, 14 Petitioner, 15 16 v. 17-940 17 NAC 18 MATTHEW G. WHITAKER, ACTING 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Adedayo O. Idowu, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Lyle D. Jentzer, 27 Senior Litigation Counsel; Erik R. 28 Quick, Trial Attorney, Office of 29 Immigration Litigation, United 30 States Department of Justice, 31 Washington, DC.

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 Petitioner Jun Chen, a native and citizen of the People’s 6 Republic of China, seeks review of a March 9, 2017, decision 7 of the BIA affirming a July 29, 2016, decision of an 8 Immigration Judge (“IJ”) denying Chen’s application for 9 asylum, withholding of removal, and relief under the 10 Convention Against Torture (“CAT”). In re Jun Chen, No. A 11 200 150 703 (B.I.A. Mar. 9, 2017), aff’g No. A 200 150 703 12 (Immig. Ct. N.Y. City July 29, 2016). We assume the parties’ 13 familiarity with the underlying facts and procedural history 14 in this case. 15 Under the circumstances of this case, we have reviewed 16 the IJ’s decision as modified by the BIA. See Xue Hong Yang 17 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). 18 Although Chen dedicates the bulk of his brief to challenging 19 the IJ’s adverse credibility determination, that 20 determination is not a basis for the agency’s decision because 21 the BIA did not reach or rely on it. Id. Although Chen 22 provides little in the way or argument on the actual bases of

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1 the agency’s decision—the lack of nexus to a protected ground 2 and the lack of harm rising to the level of persecution—we 3 address those issues for the sake of thoroughness. The 4 applicable standards of review are well established. See 5 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 6 510, 513 (2d Cir. 2009). We find no error in the agency’s 7 decision. 8 Past Persecution 9 Chen claimed that he was detained and beaten by the 10 police in 1988 because he was accused of theft and that he 11 was interrogated and beaten in 2011 because he attempted to 12 visit the home of a pro-democracy activist. The agency 13 reasonably concluded that this past harm was not on account 14 of a protected ground. 15 To establish eligibility for asylum and withholding of 16 removal, “the applicant must establish that race, religion, 17 nationality, membership in a particular social group, or 18 political opinion was or will be at least one central 19 reason for persecuting the applicant.” 8 U.S.C. 20 § 1158(b)(1)(B)(i); id. § 1231(b)(3)(A); see also Matter of 21 C-T-L-, 25 I. & N. Dec. 341, 348 (BIA 2010). To 22 demonstrate that persecution is on account of an

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1 applicant’s political opinion, the applicant must “show, 2 through direct or circumstantial evidence, that the 3 persecutor’s motive to persecute arises from the 4 applicant’s political belief,” rather than merely from the 5 persecutor’s own opinion. Yueqing Zhang v. Gonzales, 426 6 F.3d 540, 545 (2d Cir. 2005). The persecution may be on 7 account of an opinion imputed to the applicant by the 8 persecutor, regardless of whether or not this imputation is 9 accurate. See Chun Gao v. Gonzales, 424 F.3d 122, 129 (2d 10 Cir. 2005). 11 Regarding the 1988 incident, Chen did not testify to any 12 facts from which one could infer that police targeted him on 13 account of his political opinion, imputed or otherwise. He 14 testified that the police believed that he committed theft 15 and asked him questions about the theft, not about his 16 political opinion. The agency therefore did not err in 17 determining that this incident did not qualify as past 18 persecution on account of a protected ground. See Yueqing 19 Zhang, 426 F.3d at 545. 20 The agency also reasonably concluded that any harm that 21 Chen experienced in May 2011 when he attempted to visit Liu 22 Xiaobo’s house was not because Chinese officials imputed a

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1 political opinion to Chen. The IJ inferred that the police 2 officers’ actions were because Chen was attempting to enter 3 a private residence uninvited. Chen has not provided any 4 direct evidence that the officers beat him because of an 5 imputed pro-democracy political opinion given that he 6 provided no details regarding the interrogation corresponding 7 to the beating. Although the IJ could have inferred that the 8 beating was on account of an imputed political opinion, 9 “[d]ecisions as to . . . which of competing inferences to 10 draw are entirely within the province of the trier of fact.” 11 Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (internal 12 quotation marks omitted); see also INS v. Elias-Zacarias, 502 13 U.S. 478, 483 (1992) (requiring “some evidence” of 14 persecutor’s motive). 15 Chen also testified that he was fired in 1989 after he 16 participated in pro-democracy rallies and protests in China. 17 However, even assuming that Chen was fired because of his 18 political opinion, the agency did not err in determining that 19 this harm did not constitute persecution. See Matter of T- 20 Z-, 24 I. & N. Dec. 163, 170-73 (BIA 2007) (holding that to 21 be persecution, economic harm must be “severe,” but need not 22 amount to “a total deprivation of livelihood or a total

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1 withdrawal of all economic opportunity”); see also Guan Shan 2 Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 70 (2d Cir. 2002) 3 (requiring testimony or evidence of financial situation to 4 show “that he suffered a deliberate imposition of substantial 5 economic disadvantage” (internal quotation and citation 6 omitted)). Chen did not testify about difficulty finding new 7 employment or any other form of severe economic harm. 8 Future Persecution 9 The agency also did not err in determining that Chen did 10 not have an objectively reasonable fear of future 11 persecution. Absent past persecution, an alien may establish 12 eligibility for asylum by demonstrating a well-founded fear 13 of future persecution, 8 C.F.R. § 1208.13(b)(2), which must 14 be both subjectively credible and objectively reasonable, 15 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). 16 Because Chen’s fear of future harm was based on his 17 political activities in the United States, he had to show a 18 reasonable possibility that Chinese authorities were either 19 already aware, or likely to become aware, of his pro-democracy 20 activities in the United States or after his return to China. 21 Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008); 22 Shi Jie Ge v. Holder, 588 F.3d 90, 95-96 (2d Cir. 2009) (“[A]

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1 petitioner may also demonstrate a well-founded fear of future 2 persecution by demonstrating that his involvement . . . may 3 become known after his return.”). The agency reasonably 4 concluded that Chen’s participation in pro-democracy 5 activities in New York and on the internet did not necessarily 6 mean that the Chinese government would become aware of his 7 political opinion. See Jian Xing Huang v. U.S. INS, 421 F.3d 8 125, 129 (2d Cir. 2005) (absent “solid support in the record,” 9 an applicant’s fear of future persecution is “speculative at 10 best”); see also Y.C. v. Holder, 741 F.3d 324, 337 (2d Cir. 11 2013) (rejecting contention that Chinese officials are likely 12 to become aware of petitioner’s activities posted online in 13 the United States because, despite evidence that Chinese 14 authorities monitor the internet and are hostile to certain 15 groups, “it [would] require[] a chain of inferences we are 16 unprepared to draw.”). 17 Because Chen did not demonstrate that he suffered past 18 persecution or that he has a well-founded fear of future 19 persecution, he failed to meet his burden for either asylum 20 or withholding of removal. See Lecaj v. Holder, 616 F.3d 21 111, 119 (2d Cir. 2010).

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1 Chen has abandoned his CAT claim. Although his brief 2 set out the CAT standard, it contained only a single sentence 3 of argument asserting a fear of torture on account of 4 religion, which was not a basis for relief that Chen raised 5 below. See Yueqing Zhang, 426 F.3d at 545 n.7. Given the 6 fact that Chen’s brief largely discusses adverse credibility, 7 which is not at issue here, and addresses a religion-based 8 CAT claim unrelated to Chen’s case, we caution counsel to 9 brief dispositive issues and the facts and claims relevant to 10 a particular case. 11 For the foregoing reasons, the petition for review is 12 DENIED. As we have completed our review, any stay of removal 13 that the Court previously granted in this petition is VACATED, 14 and any pending motion for a stay of removal in this petition 15 is DISMISSED as moot. Any pending request for oral argument 16 in this petition is DENIED in accordance with Federal Rule of 17 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 18 34.1(b).

19 FOR THE COURT: 20 Catherine O’Hagan Wolfe, 21 Clerk of Court