Chua Hua Chen v. Holder

371 F. App'x 241

• Court: Court of Appeals for the Second Circuit
• Decided: April 13, 2010
• Docket: 18-3083
• Status: Unpublished

Opinion

SUMMARY ORDER

Petitioner Chua Hua Chen, a native and citizen of China, seeks review of a May 8, 2008, order of the BIA denying her motion to remand and affirming the June 26, 2007, decision of Immigration Judge (“IJ”) Elizabeth A. Lamb denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Chua Hua Chen, No. A095 710 129 (B.I.A. May 8, 2008), aff'g No. A095 710 129 (Immig. Ct. N.Y. City June 26, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

Under the circumstances of this case, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008); Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).

The record supports the agency’s determination that Chen failed to establish eligi bility for asylum or withholding of removal. Contrary to Chen’s argument that she suffered past persecution, the agency reasonably determined that the treatment she received for printing Falun Gong booklets failed to rise to that level. See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir.2006); Ai Feng Yuan v. U.S. Dep’t of Justice, 416 F.3d 192, 198 (2d Cir.2005) (finding that “persecution is an extreme concept that does not include every sort of treatment our society regards as offensive”)(alteration and internal quotation marks omitted). With respect to her fear of future persecution, the BIA reasonably found that even assuming government officials in China sought to arrest her, she failed to demonstrate that any harm would rise to the level of persecution, given that she was not a Falun Gong practitioner and had not been harmed in the past. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.2005) (finding that a fear is not objectively reasonable if it lacks “solid support” in the record and is merely “speculative at best”). Accordingly, the agency did not err in denying Chen’s application for asylum and withholding of removal.

Chen further challenges the agency’s denial of her application for CAT relief, arguing that the background evidence in the record demonstrates that it is more likely than not that she will be tortured by Chinese government officials on account of her illegal departure. We find no merit to that argument. As we have held, an applicant cannot demonstrate that she is more likely than not to be tortured “based solely on the fact that she is part of the large class of persons who have illegally departed China” and on generalized evidence indicating that torture occurs in Chinese prisons. Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160 (2d Cir.2005)(emphasis omitted).

Finally, we conclude that the BIA did not abuse its discretion in denying Chen’s motion to remand. See Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 151 (2d Cir.2005). The BIA reasonably determined that Chen failed to demonstrate eligibility for relief based on her fear that she would be sterilized for violating China’s family planning policy by giving birth to more than one child. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 158-73 (2d Cir,2008) (upholding the BIA’s decisions in Matter ofJ-H-S-, 24 I & N Dec. 196 (BIA 2007); Matter of J-W-S-, 24 I & N Dec. 185 (BIA 2007); Matter of S-Y-G-, 24 I & N Dec. 247 (BIA 2007)).

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.