Filed: Sep. 22, 2014
Latest Update: Mar. 02, 2020
Summary: 13-2490 Chen v. Holder BIA Zagzoug, IJ A099 927 190 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 NOT
Summary: 13-2490 Chen v. Holder BIA Zagzoug, IJ A099 927 190 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 NOTA..
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13-2490
Chen v. Holder
BIA
Zagzoug, IJ
A099 927 190
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 22nd day of September, two thousand fourteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 BARRINGTON D. PARKER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 YUNLIN CHEN,
14 Petitioner,
15
16 v. 13-2490
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Blair T. O’Connor,
27 Assistant Director; John B. Holt,
28 Trial Attorney, Civil Division,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 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 Yunlin Chen, a native and citizen of China,
6 seeks review of a June 11, 2013 decision of the BIA
7 affirming an December 15, 2011 decision of an Immigration
8 Judge (“IJ”) denying Chen’s application for asylum,
9 withholding of removal and relief under the Convention
10 Against Torture (“CAT”). In re Yunlin Chen, No. A099 927
11 190 (B.I.A. June 11, 2013), aff’g No. A099 927 190 (Immig.
12 Ct. N.Y. City Dec. 15, 2011). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we have reviewed
16 both the IJ’s and the BIA’s opinions “for the sake of
17 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
18 2008) (per curiam). The applicable standards of review are
19 well established. See 8 U.S.C. § 1252(b)(4)(B); see also
20 Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
21 Chen brought a so-called “other resistance” claim for
22 asylum and withholding of removal. To succeed, he needed to
2
1 demonstrate that: (1) he engaged in “resistance” to China’s
2 family planning policy; and (2) he suffered harm rising to
3 the level of persecution or had a well-founded fear or
4 likelihood of suffering such harm as a direct result of that
5 resistance. Shi Liang Lin v. U.S. Dep’t of Justice, 494
6 F.3d 296, 313 (2d Cir. 2007); see also 8 U.S.C.
7 § 1101(a)(42); 8 C.F.R. § 1208.16(b); Matter of J-S-, 24 I.
8 & N. Dec. 520, 523 (A.G. 2008).
9 In the main, Chen challenges the agency’s finding that
10 he did not suffer past persecution. He contends that the
11 combination of his wife’s abortion and sterilization (which
12 traumatized him), the destruction of their home, and the
13 fines imposed on them together rose to the level of
14 persecution.
15 “[P]ersecution is the infliction of suffering or harm
16 upon those who differ on the basis of a protected statutory
17 ground.” Ivanishvili v. U.S. Dep’t of Justice,
433 F.3d
18 332, 341 (2d Cir. 2006). “Such a definition is sufficiently
19 general to encompass ‘a variety of forms of adverse
20 treatment, including non-life-threatening violence and
21 physical abuse, or non-physical forms of harm such as the
22 deliberate imposition of a substantial economic
3
1 disadvantage.’” Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d
2 Cir. 2011) (quoting
Ivanishvili, 433 F.3d at 341). For
3 economic harm to constitute persecution, the harm must be
4 “severe,” but an applicant “need not demonstrate a total
5 deprivation of livelihood or a total withdrawal of all
6 economic opportunity in order to demonstrate harm amounting
7 to persecution.” Matter of T-Z-, 24 I. & N. Dec. 163,
8 170-73 (BIA 2007); see also Guan Shan Liao v. U.S. Dep’t of
9 Justice,
293 F.3d 61, 70 (2d Cir. 2002) (requiring an
10 applicant to present testimony or evidence of his financial
11 situation in order to show “that he suffered a deliberate
12 imposition of substantial economic disadvantage.” (internal
13 quotation and citation omitted)).
14 The agency reasonably concluded that the cumulative
15 harm Chen suffered did not amount to persecution. As the
16 BIA pointed out, Chen has paid all but $1,000 of the fines;
17 and as the IJ pointed out, Chen is “in a position now” to
18 clear that debt. Chen testified that he has owed the fine
19 for more than ten years; that he repaid much of it with
20 loans from neighbors; that he currently earns between $6,000
21 and $7,000 per year in the United States; and that he
22 incurred a $50,000 debt to emigrate here (of which $20,000
23 remains). Plainly, the fine is a disadvantage (as all fines
4
1 are); but Chen failed to identify any specific, substantial
2 disadvantage that he has suffered as a result. See Matter
3 of T-Z-, 24 I. & N. Dec. at 170-73; see also Guan Shan Liao,
4 293 F.3d at 70. And while his wife’s forced abortion and
5 sterilization was not irrelevant to the analysis, Shi Liang
6
Lin, 494 F.3d at 313, the combination of it and the fines
7 would not compel a finding of persecution, 8 U.S.C. §
8 1252(b)(4)(B).
9 On appeal, the parties spar over the meaning of this
10 Court’s per curiam decision in Jian Qiu Liu v. Holder, which
11 addressed a claim of past persecution based on “other
12 resistance” to the family planning policy. In that case,
13 Jian Qiu Liu testified when he and his wife failed to
14 produce a birth permit, family planning officials
15 demanded that Liu’s wife be taken so that a
16 forced abortion could be performed. As Liu’s
17 wife was being ‘dragged’ away, Liu pleaded for
18 the officials to stop. Liu then tried to
19 physically stop them. One of the officials
20 slapped Liu, but Liu continued to struggle.
21 At this point, several of the officials
22 surrounded Liu and punched him repeatedly in
23 the face, chest, and back. The police were
24 later called—after the family planning
25 officials took Liu’s wife away in order to
26 perform an abortion—and Liu spent two days in
27 custody for violating China’s family planning
28 policy.
29
30
31
5
1 632 F.3d 820, 821 (2d Cir. 2011). The IJ deemed this to be
2 past persecution and granted asylum. The BIA reversed.
3 This Court denied Liu’s petition for review, observing that
4 “prior to his arrest and detention by local police, [Liu]
5 suffered only minor bruising from an altercation with family
6 planning officials, which required no formal medical
7 attention and had no lasting physical effect.”
Id. at 822
8 (emphasis in original).
9 Chen reads our decision in Liu to measure past
10 persecution based solely on what transpired before Liu was
11 imprisoned. So, in Chen’s case, the agency should have
12 compared his suffering to the “minor bruising” that resulted
13 from Liu’s single altercation with family planning
14 officials. That analysis would lead to the inexorable
15 conclusion that “the economic, emotional and psychological
16 harm” he suffered was “substantially worse than any minor
17 bruises.”
18 Liu does not call for such mathematical parsing of the
19 timeline. To the contrary, like Chen, Liu argued that the
20 agency failed “to analyze whether the beating occurred in
21 the context of his arrest,” that is, whether the cumulative
22 harm constituted persecution.
Liu, 632 F.3d at 822. The
23 Court admonished that “a beating that occurs in the context
6
1 of an arrest or detention may constitute persecution,” and
2 the agency must be “keenly sensitive” to that possibility.
3 Id. (quoting Beskovic, 467 F.3d at 226). Here, the agency
4 correctly distinguished Liu: Chen had no altercation with
5 family planning officials. In fact, he had few interactions
6 with them at all.
7 In her oral decision, the IJ explained that while she
8 found Chen’s testimony to be credible, she found one aspect
9 of it implausible: his prediction that family planning
10 officials will sterilize him if he fails to repay the fine.
11 The IJ reasoned that Chen’s wife has been sterilized
12 already, and so there is no reason for officials to mete out
13 “such a severe penalty as sterilization” on Chen. Chen
14 labels this finding “extremely naive” in light of the
15 “horror stories stemming from the family planning
16 authorities’ draconian regime.” However, the 2007 State
17 Department profile on China, which Chen admitted into
18 evidence, states that Fujianese family planning officials
19 deny that parents can be sterilized if they are unable or
20 refuse to pay birth control fines, and that they have
21 permitted couples to make installment payments. The State
22 Department acknowledges media reports of people being
23 punished for failing to pay fines, but notes that such cases
7
1 have not been independently verified. This constitutes
2 substantial evidence to support the IJ’s finding that Chen
3 failed to satisfy his burden of showing an objectively
4 reasonable fear of future persecution.
5 The BIA’s decision assumed, without finding, that Chen
6 engaged in “resistance” to China’s family planning policy.
7 So we do not reach the issue of whether Chen did, in fact,
8 resist the family planning policy. See Xue Hong Yang v.
9 U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan
10 Chen v. Gonzales,
417 F.3d 268, 271 (2d Cir. 2005).
11 Having reasonably found that Chen failed to establish
12 the objective likelihood of persecution necessary for
13 asylum, the agency did not err in denying withholding of
14 removal and relief under the CAT, because these claims
15 shared the same factual predicate. See Paul v. Gonzales,
16
444 F.3d 148, 156-57 (2d Cir. 2006).
17 For the foregoing reasons, the petition for review is
18 DENIED. As we have completed our review, any stay of
19 removal that the Court previously granted in this petition
20 is VACATED, and any pending motion for a stay of removal in
21 this petition is DISMISSED as moot. Any pending request for
22 oral argument in this petition is DENIED in accordance with
23 Federal Rule of Appellate Procedure 34(a)(2), and Second
8
1 Circuit Local Rule 34.1(b).
2 FOR THE COURT:
3 Catherine O’Hagan Wolfe, Clerk
4
5
6
9
