Chen v. Barr ( 2019 )

17-2289
Chen v. Barr
BIA
Hom, IJ
A087 989 093
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 3rd day of September, two thousand nineteen.
PRESENT:
JON O. NEWMAN,
DENNIS JACOBS,
PIERRE N. LEVAL,
Circuit Judges.
_____________________________________
QIONG CHEN,
Petitioner,
v. 17-2289
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Margaret W. Wong, Cleveland, OH.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; John S. Hogan,
Assistant Director; Lindsay
Corliss, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
06152016-10
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 in part and DISMISSED in part.
Petitioner Qiong Chen, a native and citizen of the
People’s Republic of China, seeks review of a July 10, 2017,
BIA decision that affirmed the September 28, 2016, decision
of an Immigration Judge (“IJ”) denying withholding of
removal, relief under the Convention Against Torture (“CAT”),
and cancellation of removal. In re Qiong Chen, No. A087 989
093 (B.I.A. July 10, 2017), aff’g No. A087 989 093 (Immig.
Ct. N.Y. City Sept. 28, 2016). We assume the parties’
familiarity with the underlying facts and procedural history
in this case. We have reviewed both the IJ’s and the BIA’s
opinions “for the sake of completeness.” Wangchuck v. Dep’t
of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006).
Chen applied for withholding of removal and CAT relief,
asserting that she will likely be persecuted and tortured
based on the birth of her U.S. citizen child in violation of
China’s population control program. The applicable standards
of review are well established. See Jian Hui Shao v. Mukasey,
546 F.3d 138, 157-58 (2d Cir. 2008).
2
06282019-4
For largely the same reasons as set forth in Jian Hui
Shao, we find no error in the agency’s determination that
Chen failed to satisfy her burden for withholding of removal
and CAT relief. See id. at 158-67; see also Paul v. Gonzales,
444 F.3d 148, 156-57 (2d Cir. 2006). As with the evidence
in Jian Hui Shao, the evidence in Chen’s case, demonstrates
that family planning officials in Fujian Province use
economic incentives and punishments to pressure couples to
comply with the birth control measures, abortions, and
sterilizations required by the policy and discusses only
isolated reports of force being used. See Jian Hui Shao, 546
F.3d at 159-66, 172.
Our jurisdiction to review the agency’s denial of
cancellation of removal based on Chen’s failure to establish
hardship to a qualifying relative is limited to
constitutional claims and questions of law, 8 U.S.C.
§§ 1229b(b)(1)(D), 1252(a)(2)(B)(i), (D); Barco-Sandoval v.
Gonzales, 516 F.3d 35, 39-40 (2d Cir. 2008), for which our
review is de novo, Pierre v. Holder, 588 F.3d 767, 772 (2d
Cir. 2009). A question of law may arise when “some facts
important to the subtle determination of ‘exceptional and
extremely unusual hardship’ have been totally overlooked and
others have been seriously mischaracterized.” Mendez v.
3
06282019-4
Holder, 566 F.3d 316, 322-23 (2d Cir. 2009). For
jurisdiction to attach, however, such claims must be
colorable. Barco-Sandoval, 516 F.3d at 40-41.
There is no merit to Chen’s arguments that the agency
ignored and mischaracterized evidence in evaluating whether
her U.S. citizen daughter would suffer “exceptional and
extremely unusual hardship” as required for cancellation of
removal. 8 U.S.C. § 1229b(b)(1)(D). The IJ did not err in
concluding that Chen’s daughter could attend a relatively
inexpensive private school in China because, contrary to
Chen’s contention, the school did not require a Chinese family
registry but rather required a residence booklet, which is
necessarily available to non-Chinese citizens, such as Chen’s
daughter, given the school’s enrollment of foreign students.
The IJ’s statement that Chen’s daughter “took classes in
Chinese and was studying the Chinese language” is not a
serious mischaracterization of the evidence because, although
Chen’s daughter was not studying Chinese at the time of the
hearing, Chen and a witness testified that her daughter had
taken Mandarin classes one summer and speaks a bit of that
language. Further, the IJ explicitly considered Chen’s
daughter’s religion and asthma as well as evidence of
pollution in China. Finally, contrary to Chen’s contention,
4
06282019-4
the record does not contain evidence of the persecution of
Catholics in her home province.
For the foregoing reasons, the petition for review is
DENIED in part and DISMISSED in part.
FOR THE COURT:
Catherine O’Hagan Wolfe
Clerk of Court
5
06282019-4