11-1963
        Chen v. Holder
                                                                                        BIA
                                                                               Balasquide, IJ
                                                                               A097 160 466
                          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 Thurgood Marshall United
 3      States Courthouse, 40 Foley Square, in the City of New York,
 4      on the 3rd day of May, two thousand thirteen.
 5
 6      PRESENT:
 7               RALPH K. WINTER,
 8               ROSEMARY S. POOLER,
 9               ROBERT D. SACK,
10                    Circuit Judges.
11      _____________________________________
12
13      ZHONG KENG CHEN,
14               Petitioner,
15
16                       v.                                    11-1963
17                                                             NAC
18      ERIC H. HOLDER, JR., UNITED STATES
19      ATTORNEY GENERAL,
20               Respondent.
21      _____________________________________
22
23      FOR PETITIONER:                Galab B. Dhungana, New York, New
24                                     York.
25
26      FOR RESPONDENT:                Tony West, Assistant Attorney
27                                     General; Linda S. Wernery, Assistant
28                                     Director; Susan Bennett Green, Trial
 1                          Attorney, Office of Immigration
 2                          Litigation, United States Department
 3                          of Justice, Washington, D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

 6   Board of Immigration Appeals (“BIA”) decision, it is hereby

 7   ORDERED, ADJUDGED, AND DECREED that the petition for review

 8   is DENIED.

 9       Zhong Keng Chen, a native and citizen of the People’s

10   Republic of China, seeks review of an April 15, 2011,

11   decision of the BIA, affirming the June 4, 2009, decision of

12   Immigration Judge (“IJ”) Javier Balasquide, which denied his

13   application for asylum, withholding of removal, and relief

14   under the Convention Against Torture (“CAT”).       In re Zhong

15   Keng Chen, No. A097 160 466 (B.I.A. Apr. 15, 2011), aff’g

16   No. A097 160 466 (Immig. Ct. N.Y. City June 4, 2009). We

17   assume the parties’ familiarity with the underlying facts

18   and procedural history in this case.

19       Under the circumstances of this case, we have reviewed

20   both the IJ’s and BIA’s decision.       See Zaman v. Mukasey, 514

, 237 (2d Cir. 2008).       The applicable standards of

22   review are well-established.    See 8 U.S.C. § 1252(b)(4)(B);

23   Yanqin Weng v. Holder, 

, 513 (2d Cir. 2009).

24



                                     2
 1        Before this Court, Chen challenges only the agency’s

 2   finding that he failed to establish that the 4,500 renminbi

 3   (“RMB”) fine levied against him amounted to economic

 4   persecution, and its determination that the Department of

 5   Homeland Security (“DHS”) did not breach its duty of

 6   confidentiality in asking the U.S. Consulate in China to

 7   verify the authenticity of two abortion certificates Chen

 8   submitted in support of his application for asylum.

 9   I.   Economic Persecution Claim

10        The agency reasonably found that Chen failed to

11   demonstrate that the 4,500 RMB fine imposed by family

12   planning officials amounted to economic persecution.    See In

13   re T-Z-, 24 I. & N. Dec. 163, 173 (BIA 2007) (holding that

14   for economic harm to constitute persecution, “an applicant

15   for asylum must demonstrate a severe economic disadvantage”

16   (internal quotation marks omitted)).   First, although Chen

17   testified that he did not have a steady job in China, and

18   that he earned, at most, 6,000 RMB annually, he failed to

19   demonstrate that imposition of the 4,500 RMB fine resulted

20   in a severe economic disadvantage, as he testified that he

21   paid the fine “right away” using funds he borrowed from his

22   relatives.   See Guan Shan Liao v. U.S. Dep’t of Justice, 293


                                   3
 

, 67 (2d Cir. 2002) (holding that an asylum applicant

 2   must show at least a “deliberate imposition of a substantial

 3   economic disadvantage” in order for the harm to constitute

 4   economic persecution (internal quotation marks omitted)).

 5   Moreover, although Chen testified that his wife did not work

 6   and that his son cannot attend college “because of [the

 7   family’s] financial or economic situation,” as the IJ found,

 8   Chen did not present any evidence that his family’s current

 9   financial predicament was a consequence of the imposition of

10   the 4,500 RMB fine, or any subsequent fines imposed by

11   family planning officials.    See Guan Shan Liao, 293 F.3d at

12   70 (finding that the agency reasonably concluded that the

13   petitioner failed to demonstrate economic persecution when

14   he did not present any testimony or other evidence of his

15   income in China, his net worth at the time of the fines, or

16   any other facts that would make it possible to evaluate his

17   personal financial circumstances in relation to the fines

18   imposed by the government).   Accordingly, the agency

19   reasonably found that the fine did not cause him severe

20   economic harm rising to the level of persecution.    Id.

21




                                    4
 1   II. Breach of Confidentiality Claim

 2       Chen contends that the DHS “recklessly” revealed to the

 3   Chinese government that he was seeking asylum in the U.S.

 4   when it asked the U.S. consulate in Guangzhou, China to

 5   verify the authenticity of the two abortion certificates he

 6   submitted in support of his claim, and that as a result, he

 7   has a well-founded fear of persecution, as supported by this

 8   Court’s decision in Zhen Nan Lin v. U.S. Dep’t of Justice,

 9   

 (2d Cir. 2006).    In Zhen Nan Lin, the

10   government violated the asylum confidentiality requirement

11   of 8 C.F.R. § 208.6 by submitting for verification the

12   applicant’s Certification of Release to the Prison Bureau in

13   China.   459 F.3d at 262.   The government conceded in that

14   case that it had disclosed an unredacted copy of the

15   document, revealing extensive identifying information about

16   the applicant and about his opposition to the Communist

17   government.   Id. at 265.   The case was remanded to

18   determine, inter alia, whether the breach of asylum

19   confidentiality exposed the applicant to an additional risk

20   of persecution.   Id. at 268.

21       In Chen’s case, the government has not conceded – as it

22   did in Zhen Nan Lin – that it breached its asylum

23   confidentiality procedures.     Moreover, contrary to Chen’s
                                     5
 1   assertions that the DHS failed to take adequate precautions

 2   in conducting its investigation, the record evidence

 3   indicates that proper procedures were followed.   First, as

 4   the IJ noted, the record indicates that the DHS redacted

 5   identifying information from the Chinese-language abortion

 6   certificates prior to transferring them to the U.S.

 7   consulate in China, as well as instructed the consular

 8   officer conducting the investigation to comply with the

 9   asylum confidentiality guidelines.   See Zhen Nan Lin, 459

10   F.3d at 265-66 (“When contacting a foreign government is

11   necessary, government personnel have a number of options

12   that protect an applicant’s confidentiality [such as] . . .

13   redact[ing] information identifying the applicant from a

14   document before submitting it to the foreign government.”).

15   Furthermore, there is nothing in the record to compel the

16   conclusion that the U.S. consulate disclosed Chen’s or his

17   wife’s identity during its investigation.   Indeed, the

18   letters that the U.S. consulate received from the hospital

19   charged with authenticating the abortion certificates did

20   not contain any reference to Chen, his wife, or his wife’s

21   abortion.   Additionally, as the agency found, the record

22   indicates that the consular officer who conducted the

23   investigations was aware of the confidentiality provisions
                                   6
 1   of U.S. asylum law, having signed certifications attesting

 2   that she had not disclosed the nature of the investigations

 3   to Chinese authorities.   Accordingly, the IJ reasonably

 4   found that the record evidence did not indicate that the DHS

 5   breached its duty of confidentiality in asking the U.S.

 6   consulate in China to verify the authenticity of the

 7   abortion certificates, and, therefore, Chen failed to

 8   demonstrate that he had a well-founded fear of persecution

 9   on account of the alleged breach.

10       For the foregoing reasons, the petition for review is

11   DENIED.   As we have completed our review, the pending motion

12   for a stay of removal in this petition is DISMISSED as moot.

13

14                               FOR THE COURT:
15                               Catherine O’Hagan Wolfe, Clerk




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