Filed: Feb. 24, 2016
Latest Update: Mar. 02, 2020
Summary: 14-2826 Chong v. Lynch BIA Hom, IJ A201 104 168 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 NOTATIO
Summary: 14-2826 Chong v. Lynch BIA Hom, IJ A201 104 168 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..
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14-2826
Chong v. Lynch
BIA
Hom, IJ
A201 104 168
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 24th day of February, two thousand sixteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 REENA RAGGI,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 CHEN CHONG, AKA CHEN QIU CHONG,
14 Petitioner,
15
16 v. 14-2826
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Jed. S. Wasserman, Law Office of Ng
25 & Wasserman, PLLC, New York, New
26 York.
27
28 FOR RESPONDENT: Benjamin C. Mizer, Acting Assistant
29 Attorney General, Civil Division;
1 Eric W. Marsteller, Senior
2 Litigation Counsel, Office of
3 Immigration Litigation; Juria L.
4 Jones, Trial Attorney, Office of
5 Immigration Litigation, United
6 States Department of Justice,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review is
12 DENIED.
13 Petitioner Chen Chong, a native and citizen of the People’s
14 Republic of China, seeks review of a July 10, 2014, decision
15 of the BIA affirming an April 25, 2013, decision of an
16 Immigration Judge (“IJ”) denying Chong’s application for
17 asylum, withholding of removal, and relief under the Convention
18 Against Torture (“CAT”). In re Chong Chen, No. A201 104 168
19 (B.I.A. July 10, 2014), aff’g No. A201 104 168 (Immig. Ct. N.Y.
20 City Apr. 25, 2013). We assume the parties’ familiarity with
21 the underlying facts and procedural history in this case.
22 We have reviewed the IJ’s decision as modified by the BIA.
23 See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522
24 (2d Cir. 2005). The applicable standards of review are well
2
1 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
2 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
3 I. Rejection of Late Documents
4 Under 8 C.F.R. § 1003.31(c), the IJ may set a deadline for
5 the submission of documents and after the deadline may deem the
6 opportunity to file them waived. The IJ “retains the authority
7 to determine how to treat an untimely filing.” Exec. Office
8 for Immigration Review, U.S. Dep’t of Justice, Immigration
9 Court Practice Manual § 3.1(d)(ii) (2013). When an IJ rejects
10 documents because they are untimely, this Court reviews that
11 decision for abuse of discretion. Dedji v. Mukasey,
525 F.3d
12 187, 191 (2d Cir. 2008). An IJ has discretion to depart from
13 the filing deadline when an alien demonstrates both good cause
14 for a departure and a likelihood of substantial prejudice from
15 enforcement of the deadline.
Id. at 192.
16 On January 25, 2012, the IJ set a March 1, 2013 deadline
17 for submission of documents. On March 26, 2013, Chong sought
18 to submit letters from his aunt and church, photographs, and
19 an amendment to his asylum application. The IJ rejected the
20 evidence because Chong made no motion for an extension of time
3
1 to file the documents beyond the deadline and provided no
2 explanation for the late filing.
3 The IJ did not abuse his discretion in rejecting Chong’s
4 March 26 submission. Chong was represented by counsel, had
5 over a year to gather evidence prior to the deadline, and
6 provided no reason for the late submission. Moreover, as
7 discussed below, the IJ reasonably found that Chong’s
8 mistreatment did not amount to persecution, and none of Chong’s
9 rejected evidence is likely to have altered that finding.
10 II. Past Persecution
11 Past persecution is a “threat to the life or freedom of,
12 or the infliction of suffering or harm upon, those who differ
13 in a way regarded as offensive.” Matter of Acosta, 19 I. & N.
14 Dec. 211, 222 (B.I.A. 1985), overruled, in part, on other
15 grounds, INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); accord
16 Ivanishvili v. U.S. Dep’t of Justice,
433 F.3d 332, 341 (2d Cir.
17 2006). Past persecution can be based on harm other than threats
18 to life or freedom, including “non-life-threatening violence
19 and physical abuse,” Beskovic v. Gonzales,
467 F.3d 223, 226
20 n.3 (2d Cir. 2006), but the harm must be sufficiently severe
21 to rise above “mere harassment,”
Ivanishvili, 433 F.3d at 341.
4
1 The difference between harassment and persecution is
2 “necessarily one of degree that must be decided on a
3 case-by-case basis.” Id.
4 The IJ reasonably found that Chong did not establish past
5 persecution. Chong testified that he was arrested and detained
6 for a week, during which he was slapped in the face, and that
7 he had to pay a fine to be released. Chong did not testify that
8 the assault caused any serious injury, and he did not seek
9 medical treatment after his release. Nor does Chong argue that
10 the fine he was forced to pay amounts to economic persecution.
11 Guan Shan Liao v. U.S. Dep’t of Justice,
293 F.3d 61, 67 (2d
12 Cir. 2002). Under these circumstances, the IJ reasonably found
13 that Chong did not establish past persecution.
14 III. Well-Founded Fear of Persecution
15 To show a well-founded fear of persecution in the absence
16 of any evidence of past persecution, an alien must show a
17 reasonable possibility that authorities in her country are
18 either aware of her activities or are likely to become aware
19 of them. Hongsheng Leng v. Mukasey,
528 F.3d 135, 143 (2d Cir.
20 2008). An alien may make this showing either by offering
21 evidence that “‘he or she would be singled out individually for
5
1 persecution’” or by “prov[ing] the existence of a ‘pattern or
2 practice in his or her country . . . of persecution of a group
3 of persons similarly situated to the applicant.’” Kyaw Zwar
4 Tun v. INS, 445 F.3d 554, 564 (2d Cir. 2006) (quoting 8 C.F.R.
5 § 208.13(b)(2)(iii)).
6 The agency reasonably concluded that Chong did not show
7 that he would be singled out individually for persecution. See
8
id. Chong testified that his aunt told him that the police were
9 still looking for him, and he submitted a letter from his mother
10 stating the same, but the IJ reasonably gave limited weight to
11 this evidence because neither witness was subject to
12 cross-examination, and Chong’s mother was not in China at the
13 time of the events in question. See Xiao Ji Chen v. U.S. Dep’t
14 of Justice,
471 F.3d 315, 342 (2d Cir. 2006). Otherwise, Chong
15 submitted no evidence that Chinese authorities are aware or are
16 likely to become aware of his practice of Christianity. Kyaw
17 Zwar
Tun, 445 F.3d at 565.
18 The IJ also reasonably found that the Chinese government
19 does not have a pattern or practice of persecuting Christians.
20 To prevail in showing persecution of a particular group, a
21 petitioner must demonstrate that the harm to that group is
6
1 “systemic or pervasive.” In re A-M-, 23 I. & N. Dec. 737, 741
2 (BIA 2005); see Mufied v. Mukasey, 508 F.3d 88, 92-93 (2d Cir.
3 2007); see also Santoso v. Holder,
580 F.3d 110, 112 n.1 (2d
4 Cir. 2009). According to the State Department’s 2010 Report
5 on International Religious Freedom, scholars estimate that
6 there are around 102 million Christians in China (the official
7 number is 23 million). The report reveals only sporadic,
8 localized harassment of underground Christian groups. In some
9 areas, local authorities approved of underground church
10 activities in spite of the official state ban.
11 Based on this evidence, the IJ reasonably required
12 locality-specific evidence of persecution in Fujian, Chong’s
13 home province. Jian Hui Shao v. Mukasey,
546 F.3d 138, 156-57
14 (2d Cir. 2008). The 2010 Report makes no mention of any
15 harassment of Christians in Fujian, and Chong submitted no other
16 evidence indicating any such mistreatment. Accordingly, the
17 IJ reasonably denied Chong’s claim based on a pattern or
18 practice of persecution.
Mufied, 508 F.3d at 92-93.
19 For the foregoing reasons, the petition for review is
20 DENIED. As we have completed our review, any stay of removal
21 that the Court previously granted in this petition is VACATED,
7
1 and any pending motion for a stay of removal in this petition
2 is DISMISSED as moot. Any pending request for oral argument
3 in this petition is DENIED in accordance with Federal Rule of
4 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
5 34.1(b).
6 FOR THE COURT:
7 Catherine O=Hagan Wolfe, Clerk
8
