Filed: Feb. 25, 2010
Latest Update: Mar. 02, 2020
Summary: 09-2900-ag Chen v. Holder BIA Morace, IJ A 097 743 640 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
Summary: 09-2900-ag Chen v. Holder BIA Morace, IJ A 097 743 640 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 N..
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09-2900-ag
Chen v. Holder
BIA
Morace, IJ
A 097 743 640
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 25 th day of February, two thousand ten.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 RICHARD C. WESLEY,
9 PETER W. HALL,
10 Circuit Judges.
11
12 _______________________________________
13
14 XING TIAN CHEN, a.k.a. XING JIAN CHENG,
15 Petitioner,
16
17 v. 09-2900-ag
18 NAC
19 ERIC H. HOLDER, JR.,
20 UNITED STATES ATTORNEY GENERAL
21 Respondent.
22
23 _______________________________________
24
25 FOR PETITIONER: Pro se.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Jennifer Levings, Senior
29 Litigation Counsel; Karen L. Melnik,
30 Trial Attorney, Office of
31 Immigration Litigation, Civil
32 Division, United States Department
33 of Justice, Washington, D.C.
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 Xing Jian Chen, a native and citizen of
6 China, seeks review of the June 12, 2009 order of the BIA
7 denying his motion to remand and affirming the October 17,
8 2007 decision of Immigration Judge (“IJ”) Philip L. Morace
9 denying his application for asylum, withholding of removal,
10 and relief under the Convention Against Torture (“CAT”). In
11 re Xing Jian Chen, No. A 097 743 640 (B.I.A. June 12, 2009),
12 aff’g No. A 097 743 640 (Immig. Ct. N.Y. City Oct. 17,
13 2007). We assume the parties’ familiarity with the
14 underlying facts and procedural history in this case.
15 Under the circumstances of this case, we consider both
16 the IJ’s and BIA’s opinions “for the sake of completeness.”
17 Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008) (internal
18 quotation omitted). The applicable standards of review are
19 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
20 v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
21 Chen argues that the government violated 8 C.F.R.
22 § 208.6 by informing Chinese authorities that he had applied
2
1 for political asylum in the United States. Under that
2 section, “[i]nformation contained in or pertaining to any
3 asylum application . . . shall not be disclosed without the
4 written consent of the applicant.” 8 C.F.R. § 208.6(a). In
5 determining whether confidentiality has been breached, the
6 relevant inquiry is whether the information disclosed by the
7 government “was sufficient to give rise to a reasonable
8 inference” that Chen had applied for asylum. Zhen Nan Lin
9 v. U.S. Dep’t of Justice, 459 F.3d 255, 264 (2d Cir. 2006).
10 In this case, the redaction of Chen’s name from the police
11 report before it was sent to the Chinese authorities was
12 sufficient to satisfy 8 C.F.R. § 208.6. See Zhen Nan Lin,
13 459 F.3d at 266 (holding that, in order to protect an asylum
14 applicant’s identity, the government may “redact information
15 identifying the applicant from a document before submitting
16 it to the foreign government”). To the extent Chen argues
17 that authorities could have discovered his identity by using
18 the arrest date and other information contained in the
19 report, we are not persuaded.
20 The IJ also did not err in denying Chen’s claims for
21 withholding of removal and CAT relief. Although Chen argues
22 that the IJ failed to address his eligibility for
3
1 withholding of removal based on his illegal departure from
2 China, Chen never raised an illegal departure claim in his
3 asylum application or his testimony before the IJ. To the
4 contrary, Chen testified that he did not know whether he
5 left China legally or illegally. Furthermore, to the extent
6 the IJ construed Chen to have raised a CAT claim based on
7 his being “smuggled” out of China, the IJ did not err in
8 finding Chen ineligible for relief on that basis,
9 particularly where he produced no evidence in support of
10 such a claim. See Mu Xiang Lin v. U.S. Dep’t of Justice,
11 432 F.3d 156, 159-60 (2d Cir. 2005); Mu-Xing Wang v.
12 Ashcroft,
320 F.3d 130, 143-44 (2d Cir. 2003). Contrary to
13 Chen’s assertion, the IJ did not reject his CAT claim on
14 credibility grounds, instead finding that the evidence,
15 testimony, and background materials did not establish that
16 it was more likely than not that Chen would be tortured if
17 returned to China.
18 Finally, the BIA did not abuse its discretion in
19 denying Chen’s motion to remand. See Jin Ming Liu v.
20 Gonzales,
439 F.3d 109, 111 (2d Cir. 2006). Instead, the
21 BIA properly declined to remand based on two letters Chen
22 submitted from his mother that were questionable on their
23 face. See INS v. Abudu,
485 U.S. 94, 104-05 (1988).
4
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any pending motion
3 for a stay of removal in this petition is DISMISSED as moot.
4 Any pending request for oral argument in this petition is
5 DENIED in accordance with Federal Rule of Appellate
6 Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
7
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
10
5
