09-2879-ag
    Chen v. Holder
                                                                                    BIA
                                                                                 Hom, IJ
                                                                            A079 407 387
                      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 A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


         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 7 th day of April, two thousand ten.

    PRESENT:
             REENA RAGGI,
             RICHARD C. WESLEY,
             PETER W. HALL,
                  Circuit Judges.
    _________________________________________

    TIAN ZI CHEN,
             Petitioner,

                     v.                                     09-2879-ag
                                                            NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _________________________________________

    FOR PETITIONER:                Charles Christophe, New York, New
                                   York.

    FOR RESPONDENT:                Tony West, Assistant Attorney
                                   General; Michelle G. Latour,
                                   Assistant Director; Kimberly A.
                                   Burdge, 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 DENIED.

     Tian Zi Chen, a native and citizen of the People’s
Republic of China, seeks review of a June 24, 2009, order of
the BIA, affirming the September 21, 2006, decision of
Immigration Judge (“IJ”) Sandy K. Hom, which denied his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Tian Zi
Chen, No. A079 407 387 (B.I.A. June 20, 2009), aff’g No.
A079 407 387 (Immig. Ct. N.Y. City Sept. 21, 2006). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.

     Under the circumstances of this case, we review both
the IJ’s and the BIA’s opinions “for the sake of
completeness.” Zaman v. Mukasey, 

, 237 (2d Cir.
2008). The applicable standards of review are well-
established. See Salimatou Bah v. Mukasey, 

, 110
(2d Cir. 2008); Manzur v. U.S. Dep’t of Homeland Sec., 

, 289 (2d Cir. 2007).

I.   Asylum and Withholding of Removal

     This is the second time this case has come before us.
In a prior order, we held that the agency’s reasoning was
insufficient to support its denial of relief, and remanded
Chen’s case for further administrative findings. See Tian
Zi Chen v. Gonzales, No. 04-1077-AG NAC, 163 Fed. Appx. 27,
29 (2d Cir. Jan. 4, 2006) (unpublished). On remand, the
agency issued a new decision relying in part on reasoning we
previously held to be flawed. Chen argues that in
concluding that he did not have a well-founded fear, the BIA
erred in relying on the fact that his family members did not
face persecution, because they were not similarly situated.
We agree. Indeed, we found that same argument persuasive in
our previous order. See 

previous holding
constitutes the law of the case, the agency erred in basing

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its decision in part on this finding. See United States v.
Quintieri, 

, 1225 (2d Cir. 2002); Johnson v.
Holder, 

, 99 (2d Cir. 2009).

     However, because the BIA’s alternative rationale is not
erroneous, remand would be futile. See Xiao Ji Chen v. U.S.
Dep’t of Justice, 

, 339 (2d Cir. 2006). In
denying relief, the IJ found that Chen did not provide
sufficient evidence to show that his fear of persecution was
well-founded, because the evidence he submitted –
generalized evidence of country conditions and
unauthenticated documents concerning his father’s arrest and
medical treatment – did not establish that Chen, in
particular, reasonably feared persecution. See Diallo v.
INS, 

, 285-88 (2d Cir. 2000). Moreover, to the
extent Chen argues that he established a well-founded fear
of persecution based on his current practice of Falun Gong,
his claim is without merit. Chen did not testify regarding
his alleged current practice of Falun Gong, resting instead
on his prior testimony. Under these circumstances, the IJ
reasonably found that documents in the record – photographs
purportedly showing Chen practicing Falun Gong and his
roommate’s affidavit – in and of themselves were
insufficient to meet his burden. See Xiao Ji 

; Hongsheng Leng v. Mukasey, 

, 143 (2d
Cir. 2008). Because Chen failed to establish his
eligibility for asylum, his withholding of removal claim
fails as well. See Paul v. Gonzales, 

, 156 (2d
Cir. 2006).

II.   CAT

     To the extent Chen claims that he established his
eligibility for CAT relief due to his actual or imputed
connection to Falun Gong, the BIA did not err in denying
this relief because his CAT claim is based on the same
factual predicate as his claims for asylum and withholding.
See Xue Hong Yang v. U.S. Dep’t of Justice, 

,
523 (2d Cir. 2005). Insofar as Chen’s CAT claim is based on
his purportedly illegal departure from China, the BIA’s
denial was also not in error. See Mu Xiang Lin v. U.S.
Dep’t of Justice, 

, 160 (2d Cir. 2005).




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     For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
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 Rule 34.1(b).


                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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