Chen v. Garland ( 2023 )

20-1819
Chen v. Garland
BIA
Sponzo, IJ
A208 615 221
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
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 23rd day of February, two thousand twenty-
5 three.
6
7 PRESENT:
8 RICHARD J. SULLIVAN,
9 WILLIAM J. NARDINI,
10 EUNICE C. LEE,
11 Circuit Judges.
12 _____________________________________
13
14 YANG AO CHEN,
15 Petitioner,
16
17 v. 20-1819
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Richard Tarzia, Law Office of
25 Richard Tarzia, Belle Meade, NJ.
26
27 FOR RESPONDENT: Brian M. Boynton, Acting Assistant
28 Attorney General; Anthony C.
1 Payne, Assistant Director; Joseph
2 D. Hardy, Trial Attorney, Office
3 of Immigration Litigation, Civil
4 Division, United States Department
5 of Justice, Washington, D.C.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Yang Ao Chen, a native and citizen of the
11 People’s Republic of China, seeks review of a May 19, 2020
12 decision of the BIA denying his motion to terminate and
13 affirming a May 2, 2018 decision of an Immigration Judge
14 (“IJ”) denying his application for asylum, withholding of
15 removal, and relief under the Convention Against Torture
16 (“CAT”). In re Yang Ao Chen, No. A208 615 221 (B.I.A. May
17 19, 2020), aff’g No. A208 615 221 (Immigr. Ct. N.Y. City May
18 2, 2018). We assume the parties’ familiarity with the
19 underlying facts and procedural history.
20 Motion to Terminate
21 We review the denial of a motion to terminate for abuse
22 of discretion. See Twum v. INS, 411 F.3d 54, 58 (2d Cir.
23 2005). Chen relies on Pereira v. Sessions, 138 S. Ct. 2105,
24 2115 (2018), which held that an incomplete Notice to Appear
2
1 (“NTA”) does not trigger the stop-time rule for cancellation
2 of removal to argue that the BIA should have terminated his
3 removal proceedings for lack of jurisdiction because his NTA
4 did not contain the date or time of his initial hearing.
5 This Court explicitly rejected that extension of Pereira in
6 Banegas Gomez v. Barr, 922 F.3d 101, 105 (2d Cir. 2019). As
7 we stated in Banegas Gomez, we see “no basis” for construing
8 Pereira “to divest an Immigration Court of jurisdiction
9 whenever an NTA lacks information regarding a hearing’s time
10 and date.” Id. at 111. “[A]n NTA that omits information”
11 vests jurisdiction in the Immigration Court, “at least so
12 long as a notice of hearing specifying this information is
13 later sent to the alien.” Id. at 112. Following the initial
14 incomplete NTA, Chen received a notice with the time, date,
15 and place of the proceeding. Given that the defect in the
16 NTA was cured, the BIA did not abuse its discretion in denying
17 Chen’s motion to terminate for lack of jurisdiction.
18 Asylum and Withholding of Removal
19 We have reviewed both the BIA’s and the IJ’s opinions as
20 to the denial of asylum and withholding of removal. Guan v.
21 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). We review the
22 agency’s factual findings for substantial evidence, and we
3
1 review questions of law de novo. See Wei Sun v. Sessions,
2 883 F.3d 23, 27 (2d Cir. 2018). Further, we determine that
3 “the administrative findings of fact are conclusive unless
4 any reasonable adjudicator would be compelled to conclude to
5 the contrary.” See 8 U.S.C. § 1252(b)(4)(B).
6 To establish eligibility for asylum, Chen had to show
7 that he suffered past persecution or that he had a well-
8 founded fear of future persecution. See 8 U.S.C.
9 §§ 1101(a)(42), 1158(b)(1)(A), (B)(i). “[P]ersecution is
10 ‘an extreme concept that does not include every sort of
11 treatment our society regards as offensive.’” Mei Fun Wong
12 v. Holder, 633 F.3d 64, 72 (2d Cir. 2011) (quoting Ai Feng
13 Yuan v. U.S. Dep’t of Just., 416 F.3d 192, 198 (2d Cir.
14 2005)). Persecution may “encompass[] a variety of forms of
15 adverse treatment, including non-life-threatening violence
16 and physical abuse,” but the harm must be sufficiently severe,
17 rising above “mere harassment.” Ivanishvili v. U.S. Dep’t
18 of Just., 433 F.3d 332, 341 (2d Cir. 2006) (quotation marks
19 and brackets omitted). “‘[T]he difference between harassment
20 and persecution is necessarily one of degree,’” which “must
21 be assessed with regard to the context in which the
22 mistreatment occurs.” Beskovic v. Gonzales, 467 F.3d 223,
4
1 226 (2d Cir. 2006) (quoting Ivanishvili, 433 F.3d at 341).
2 Substantial evidence supports the agency’s conclusion
3 that Chen did not establish past persecution. Chen testified
4 that the police beat him during a raid on a house church, but
5 that he was not arrested, and that the beating resulted in
6 bruising and swelling for which he did not seek medical
7 attention. Even in the context of arrest and detention, we
8 have never held that a beating is “persecution per se.” Jian
9 Qiu Liu v. Holder, 632 F.3d 820, 821–22 (2d Cir. 2011).
10 Therefore, the agency reasonably concluded that this single
11 incident did not rise to the level of past persecution. See
12 id. (finding no error in BIA’s conclusion that applicant had
13 not demonstrated past persecution based on evidence of a
14 beating prior to arrest that had “no lasting physical effect”
15 and for which the petitioner did not seek medical attention).
16 Likewise, the agency reasonably concluded that Chen did
17 not have a well-founded fear of future persecution because he
18 did not demonstrate that he would be “singled out individually
19 for persecution” or that China has a “pattern or practice” of
20 persecuting “similarly situated” individuals. 8 C.F.R.
21 § 1208.13(b)(2)(iii).
22 Substantial evidence supports the conclusion that Chen
5
1 did not demonstrate that he would be individually singled out
2 for persecution. Chen testified to the single raid in 2015,
3 but did not present evidence that the police continued to
4 look for him beyond a few months after that raid. See Huang
5 v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence
6 of solid support in the record . . . , [an applicant’s] fear
7 is speculative at best.”). Additionally, the IJ reasonably
8 concluded that Chen’s ability to leave China using his own
9 passport suggested that authorities were not actively
10 searching for him. Cf. Ying Li v. Bureau of Citizenship &
11 Immigration Servs., 529 F.3d 79, 83 (2d Cir. 2008) (upholding
12 an IJ’s implausibility finding where petitioner alleged that
13 she was able to leave China on her passport while wanted by
14 local authorities).
15 Nor does the country–conditions evidence compel the
16 conclusion that there is a pattern or practice of persecution
17 of those worshipping in family churches. See 8 C.F.R.
18 § 1208.13(b)(2)(iii); In re A-M-, 23 I. & N. Dec. 737, 741
19 (B.I.A. 2005) (defining a pattern or practice of persecution
20 as the “systemic or pervasive” persecution of a group).
21 True, the record does contain evidence of abuses against
22 members of unregistered Christian churches in China, and that
6
1 one such church in Chen’s native province of Fujian was
2 banned. But the U.S. State Department estimates that there
3 are 70 million Christians in China, only 16 million of whom
4 are affiliated with a state-sanctioned church, and that
5 freedom to conduct religious services has been increasing.
6 Certified Administrative Record at 280, 294. Furthermore,
7 the reports do not identify incidents of persecution in Chen’s
8 home province of Fujian. Id.; Liang v. Garland, 10 F.4th
9 106, 117 (2d Cir. 2021) (concluding that pattern or practice
10 claim fails when persecution of religious practitioners is
11 not nationwide and there is no evidence of persecution in
12 applicant’s home province). On this record, an IJ could
13 reasonably conclude that the country-conditions evidence
14 failed to establish that Chen had an objectively reasonable
15 fear of persecution. See Liang, 10 F.4th at 117; Huang, 421
16 F.3d at 129.
17 Because Chen failed to meet the lower burden for asylum,
18 he necessarily failed to meet the higher burden for
19 withholding of removal, which requires a greater likelihood
20 of persecution. See 8 C.F.R. §§ 1208.13(b), 1208.16(b);
7
1 Lecaj, 616 F.3d at 119–20. 1
2 For the foregoing reasons, the petition for review is
3 DENIED. All pending motions and applications are DENIED and
4 stays VACATED.
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe,
7 Clerk of Court
1The IJ could have denied CAT relief based on her finding that Chen
failed to establish a well-founded fear of persecution, but instead made
an independent, dispositive finding that Chen failed to establish a
likelihood of harm rising to the level of torture. Chen did not
challenge that finding before the BIA and does not challenge it here.
But even if this argument were exhausted and raised, the claim would
fail on the same grounds as her claims for asylum and withholding of
removal did. See Lecaj v. Holder, 616 F.3d 111, 119–20 (2d Cir. 2010)
(holding that applicant who “fails to demonstrate the . . . chance of
persecution required for the grant of asylum . . . necessarily fails to
demonstrate . . . the more likely than not to be tortured standard
required for CAT relief” (quotation marks and citations omitted)).
8