09-3712-ag
    Chen v. Holder
                                                                                  BIA
                                                                             Nelson, IJ
                                                                          A098 291 905
                      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 25th day of October, two thousand ten.

    PRESENT:
             GUIDO CALABRESI,
             REENA RAGGI,
             PETER W. HALL,
                 Circuit Judges.
    _______________________________________

    CAISHEN CHEN,
             Petitioner,

                     v.                                    09-3712-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    ______________________________________
    FOR PETITIONER:               Jan Allen Reiner, New York, New
                                  York.
FOR RESPONDENT:        Tony West, Assistant Attorney
                       General, Emily Anne Radford,
                       Assistant Director, Craig A. Newell,
                       Jr., Trial Attorney, Office of
                       Immigration Litigation, Civil
                       Division, 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.
     Petitioner Caishen Chen, a native and citizen of China,
seeks review of the August 3, 2009, order of the BIA,
affirming the November 30, 2007, decision of Immigration
Judge (“IJ”) Barbara A. Nelson denying his application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Caishen Chen, No.
A098 291 905 (B.I.A. Aug. 3, 2009), aff’g No. A098 291 905
(Immig. Ct. N.Y. City Nov. 30, 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, 

, 271 (2d Cir. 2005). The
applicable standards of review are well-established. See 8
U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 

, 95
(2d Cir. 2008); Salimatou Bah v. Mukasey, 

, 110
(2d Cir. 2008).
       The BIA correctly found that Chen was ineligible for
relief based solely on his wife’s forced sterilization. See
Shi Liang Lin v. U.S. Dep’t of Justice, 

, 309-10
(2d Cir. 2007); Matter of J-S-, 24 I & N Dec. 520 (A.G.
2008); see also Matter of S-L-L-, 24 I & N Dec. 1 (BIA
2006). Contrary to Chen’s argument, the BIA did not err in
its application of law because, as a general rule, the BIA
applies the law in effect at the time it enters its
decision. See 8 C.F.R. § 1003.1(d)(3)(ii) (BIA has
authority on appeal to review questions of law de novo); cf.
NLRB v. Coca-Cola Bottling Co., 

, 78 (2d Cir.
1995) (“Appellate courts ordinarily apply the law in effect
at the time of the appellate decision.”)(internal quotation
marks omitted). Moreover, the agency reasonably found that,
even assuming Chen’s credibility and that he had resisted
China’s family planning policy by engaging in an altercation
with family planning officials as he was trying to see his
wife who had been brought in for an abortion, the harm he
suffered during that confrontation with family planning
officials did not rise to the level of persecution. See
Beskovic v. Gonzales, 

, 225-26 (2d Cir. 2006);
Ivanishvili v. U.S. Dep’t of Justice, 

, 341-42
(2d Cir. 2006).


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     The BIA also observed that Chen did not present
sufficient evidence to demonstrate that he had a well-
founded fear of future persecution based on any
“resistance.” However, as the government argues, in its
opening brief before us, Chen does not challenge that
finding. Additionally, Chen does not challenge the agency’s
denial of his application for withholding of removal and CAT
relief.
     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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