Chen v. Holder , 573 F. App'x 78 ( 2014 )

12-2867
Chen v. Holder
BIA
Rohan, IJ
A097 524 071
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 6th day of August, two thousand fourteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 ROSEMARY S. POOLER,
9 REENA RAGGI,
10 Circuit Judges.
11 _____________________________________
12
13 CHENG CHEN,
14 Petitioner,
15
16 v. 12-2867
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Khagendra Gharti-Chhetry, New York,
24 New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Principal Deputy
27 Assistant Attorney General; Eric W.
28 Marsteller, Senior Litigation
29 Counsel; John B. Holt, Trial
30 Attorney, Office of Immigration
31 Litigation, United States Department
32 of Justice, 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 Cheng Chen, a native and citizen of the
6 People’s Republic of China, seeks review of a June 22, 2012,
7 order of the BIA affirming in part the June 17, 2010,
8 decision of Immigration Judge (“IJ”) Patricia A. Rohan,
9 which denied Chen’s application for asylum and withholding
10 of removal, and reversed in part the IJ’s grant of relief
11 under the Convention Against Torture (“CAT”). In re Cheng
12 Chen, No. A097 524 071 (B.I.A. June 22, 2012), aff’g and
13 rev’g No. A097 524 071 (Immig. Ct. N.Y. City June 17, 2010).
14 We assume the parties’ familiarity with the underlying facts
15 and procedural history in this case.
16 Under the circumstances of this case, we have reviewed
17 the IJ’s decision as modified by the BIA. See Xue Hong Yang
18 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
19 The applicable standards of review are well-established.
20 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562
21 F.3d 510, 513 (2d Cir. 2009). Pursuant to 8 U.S.C.
22 § 1252(a)(2)(C), we lack jurisdiction to review final orders
23 of removal against an alien, such as Chen, who is removable
2
1 by reason of having committed an aggravated felony.
2 However, because Chen’s arguments raise “questions of law,”
3 we retain jurisdiction over his petition. 8 U.S.C.
4 § 1252(a)(2)(D); see Xiao Ji Chen v. U.S. Dep’t of Justice,
5 471 F.3d 315, 329-30 (2d Cir. 2006).
6 Initially, Chen challenges the agency’s pretermission
7 of withholding of removal, contending that the agency erred
8 in not separately analyzing whether he was a danger to the
9 community when making the discretionary determination that
10 his 2007 conviction for assault with a dangerous weapon in
11 aid of racketeering activity, see 18 U.S.C. § 1959(a)(3),
12 was a particularly serious crime. Chen’s argument, however,
13 is foreclosed by our decision in Ahmetovic v. Immigration &
14 Naturalization Service, 62 F.3d 48 (2d Cir. 1995), which
15 accorded Chevron deference to the BIA’s interpretation that
16 no separate danger to the community analysis is required
17 where a crime is found to be particularly serious. See id.
18 at 52-53.
19 Chen also challenges the BIA’s denial of CAT deferral,
20 contending that the BIA mischaracterized the IJ’s factual
21 assessment of the background evidence and applied the wrong
22 legal standard in finding that the IJ’s grant of CAT relief
3
1 was clearly erroneous. However, contrary to Chen’s
2 assertion, the BIA properly applied the clear error standard
3 of review to the IJ’s findings of future fact because its
4 reversal was based not on a de novo review of the record,
5 but rather on a determination that the record did not
6 support the IJ’s conclusion that Chen faced probable future
7 torture. See Hui Lin Huang v. Holder, 677 F.3d 130, 134
8 (2d Cir. 2012) (noting that the BIA may reject finding of
9 future fact as clearly erroneous “where the IJ lacks an
10 adequate basis in the record for the determination that a
11 future event will, or is likely to, occur”).
12 The BIA correctly noted that the probability of Chen
13 being discovered and detained for his future practice of
14 Falun Gong in China and the probability that Chen would be
15 tortured once detained are distinct factual propositions.
16 In these circumstances, we have recognized that “[a]n alien
17 will never be able to show that he faces a more likely than
18 not chance of torture if one link in the chain cannot be
19 shown to be more likely than not to occur.” Savchuck v.
20 Mukasey, 518 F.3d 119, 123-24 (2d Cir. 2008). Although the
21 IJ relied on particularized evidence demonstrating that
22 Falun Gong practitioners like Chen are subject to torture in
4
1 China once detained—a finding that the BIA credited—the BIA
2 nevertheless reasonably determined that the IJ’s finding
3 that Chen would be discovered and detained for his practice
4 of Falun Gong in China was clearly erroneous because it was
5 not based on any particularized evidence. See Hui Lin
6 Huang, 677 F.3d at 133-34; see also Mu Xiang Lin v. U.S.
7 Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir. 2005)
8 (requiring particularized evidence of a likelihood of
9 torture to establish eligibility for CAT relief); cf. Jian
10 Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (finding
11 that, absent “solid support in the record,” a fear of future
12 harm is “speculative at best”).
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, the pending motion
15 for a stay of removal in this petition is DISMISSED as moot.
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk of Court
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