Jing Chen v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 9, 2022
• Docket: 20-73267
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 9 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JING SHENG CHEN, No. 20-73267

Petitioner, Agency No. A047-860-759

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted March 7, 2022** Portland, Oregon

Before: GRABER and VANDYKE, Circuit Judges, and REISS,*** District Judge.

Petitioner is a native and citizen of China who entered the United States as a

lawful permanent resident on April 23, 2001. In 2011, he was convicted of drug-

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Christina Reiss, United States District Judge for the District of Vermont, sitting by designation. related crimes in Oregon. An immigration judge (“IJ”) found that Petitioner was

removable and denied his applications for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”). The Board of

Immigration Appeals (“BIA”) adopted the IJ’s decision without opinion.

Petitioner seeks review of the BIA’s adoption of the IJ’s denial of his request for

deferral of removal under CAT. We deny the petition.

Substantial evidence supports the IJ’s conclusion that Petitioner failed to

establish that it is “more likely than not” that he would be tortured if he returned to

China. 8 C.F.R. § 1208.16(c)(2); see Quijada-Aguilar v. Lynch, 799 F.3d 1303,

1305 (9th Cir. 2015) (holding that we review for substantial evidence the denial of

CAT relief). Substantial evidence supports the IJ’s finding that Petitioner’s

mistreatment did not rise to the level of past torture. Although government

officials detained Petitioner overnight in 2002 and beat him, Petitioner neither

provided specific testimony regarding his injuries nor claimed that his injuries

were severe or required medical treatment. A brief detention coupled with non-

specific, non-severe physical injuries does not rise to the level of past torture. See,

e.g., Kumar v. Gonzales, 444 F.3d 1043, 1055–56 (9th Cir. 2006) (concluding that

substantial evidence supported the IJ’s determination that a month-long detention

and multiple beatings by police did not rise to the level of torture). Nor does the

remaining evidence in the record, including evidence of country conditions,

2 compel the conclusion that Petitioner would more likely than not be tortured.

We reject Petitioner’s argument that the BIA failed to consider all the

evidence in the record. Where, as here, the BIA adopts an IJ’s decision without

opinion pursuant to 8 C.F.R. § 1003.1(e)(4), we “review the IJ’s decision as if it

were the BIA’s decision.” Ren v. Holder, 648 F.3d 1079, 1083 (9th Cir. 2011)

(citation omitted). The IJ expressly considered the evidence of country conditions

and reasonably concluded that it failed to meet Petitioner’s burden.

PETITION DENIED.