Chen v. Lynch , 618 F. App'x 708 ( 2015 )


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  •     13-1239
    Chen v. Lynch
    BIA
    Hom, IJ
    A087 785 377
    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 ASUMMARY 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 16th day of July, two thousand fifteen.
    PRESENT:
    DEBRA ANN LIVINGSTON,
    SUSAN L. CARNEY,
    CHRISTOPHER F. DRONEY,
    Circuit Judges.
    _____________________________________
    CHANGJIAN CHEN,
    Petitioner,
    v.                                               13-1239
    NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,*
    Respondent.
    _____________________________________
    *
    Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
    Attorney General Loretta E. Lynch is automatically substituted
    for former Attorney General Eric H. Holder, Jr., as the
    Respondent in this case.
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    FOR PETITIONER:                       Changjian Chen, Pro Se,
    Flushing, NY
    FOR RESPONDENT:                       Joyce R. Branda, Acting
    Assistant Attorney General;
    Emily Anne Radford, Assistant
    Director; Jesse D. Lorenz, Trial
    Attorney, Office of Immigration
    Litigation, United States
    Department of Justice,
    Washington D.C.
    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 DISMISSED in part and DENIED in part.
    Petitioner Changjian Chen, a native and citizen of the
    People’s Republic of China, seeks review of a March 12,
    2013, decision of the BIA, affirming the November 10, 2011,
    decision       of   an    Immigration       Judge    (“IJ”),   denying      his
    application for asylum, withholding of removal, and relief
    under    the    Convention       Against     Torture    (“CAT”).       In    re
    Changjian Chen, No. A087 785 377 (B.I.A. Mar. 12, 2013),
    aff’g    No.    A087     785   377   (Immig.   Ct.    N.Y.   City   Nov.    10,
    2011).         We   assume     the    parties’      familiarity     with    the
    underlying facts and procedural history in this case.
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    Under the circumstances of this case, we have reviewed
    both the BIA’s and IJ’s opinions.                   See Zaman v. Mukasey,
    
    514 F.3d 233
    ,    237    (2d   Cir.      2008)    (per      curiam).         The
    applicable standards of review are well established.                       See 8
    U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 
    562 F.3d 510
    , 513 (2d Cir. 2009).
    The petition raises three issues: (1) whether the IJ
    abused his discretion in refusing to accept Chen’s evidence
    submitted after the filing deadline; (2) whether the IJ
    committed constitutional or legal error in pretermitting
    Chen’s asylum application as untimely; and (3) whether the
    IJ erred in finding that Chen did not establish either past
    persecution    or    a   likelihood        of   future   persecution.           We
    dismiss the petition as to Chen’s claim for asylum.                             We
    deny the petition as to all other matters.
    I.    Rejection of Late Documents
    Under 8 C.F.R. § 1003.31(c), an IJ may set a deadline
    for the submission of documents, and after the deadline,
    may   deem   the    opportunity    to      file   them    waived.         The   IJ
    “retains     the    authority     to       determine     how    to   treat       an
    untimely filing.”          Imm. Ct. Pract. Man. Ch.3(d)(ii).                    We
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    review an IJ’s rejection of documents as untimely for abuse
    of discretion.       Dedji v. Mukasey, 
    525 F.3d 187
    , 191 (2d
    Cir. 2008).    An IJ may depart from a deadline when an alien
    demonstrates    both     good    cause           for   a     departure      and   a
    likelihood of substantial prejudice from enforcement of the
    deadline.    Id. at 192.
    On April 7, 2010, the IJ set the filing deadline as
    March   1,   2011,   giving     Chen       almost      one    year    to    submit
    documents.     Chen submitted a number of documents pertaining
    to his date of entry into the United States and his past
    persecution    one     day    after        the     deadline.         Chen     then
    submitted    additional      documents       weeks         later,    purportedly
    because he had been waiting for his mother’s letter to
    arrive from China.       The IJ did not abuse his discretion in
    rejecting these late documents.                   Chen was represented by
    counsel, had nearly a year to gather evidence prior to the
    deadline, and did not request an extension or explain in
    advance that the submissions would be late.                     See Dedji, 525
    F.3d at 192.
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    II. Untimely Asylum Application
    Pursuant to 8 U.S.C. §§ 1158(a)(3) and 1252(a)(2)(D),
    our jurisdiction to review the agency’s determination that
    an    asylum       application       was     untimely     is       limited     to
    “constitutional claims or questions of law.”                       Chen raises
    no reviewable claims.          He argues that the IJ erred when he
    discounted     testimony      that    Chen    witnessed      the   exit   stamp
    being placed in his passport in November 2008, but this
    argument goes to the weight to be afforded the passport,
    and   does   not    present    a     question    of   law.     Because       Chen
    contests only the weight the IJ gave to his passport, he
    raises a factual issue this Court lacks jurisdiction to
    review.      Xiao Ji Chen v. U.S. Dep’t of Justice, 
    471 F.3d 315
    , 328-29, 332 (2d Cir. 2006).
    III. Withholding of Removal
    To establish eligibility for withholding of removal, an
    applicant must show that he will likely be persecuted if
    returned     to    his   country.       8    U.S.C.   §   1231(b)(3)(A);        8
    C.F.R. § 1208.16(b)(1), (2).                If the applicant is found to
    have suffered past persecution, it is presumed that there
    is a likelihood of future persecution on that basis.                           8
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    C.F.R.      §   1208.16(b)(1).            Absent     past     persecution,        to
    establish an independent fear of persecution, an applicant
    must show that he subjectively fears persecution and that
    this    fear      is   objectively       reasonable.         Ramsameachire        v.
    Ashcroft, 
    357 F.3d 169
    , 178 (2d Cir. 2004).
    As Chen argues, the agency failed to consider all of
    his testimony when considering whether he had established
    past persecution.          The IJ noted that Chen testified that he
    was    arrested        during   a   religious        service    in    his   home,
    detained for three days, forced to pay a fine, and required
    to report monthly to the police.                    However, the IJ did not
    reference an earlier incident in which Chen was detained
    for    five       hours     for     distributing           material   promoting
    Christianity, or that he was unable to enroll in college
    due    to   the    three-day      detention     for    participation        in   an
    illegal activity.           As a result, the agency may not have
    considered        Chen’s    past        harm   in    the     aggregate.          See
    Poradisova v. Gonzales, 
    420 F.3d 70
    , 79-80 (2d Cir. 2005);
    Tian-Yong Chen v. INS, 
    359 F.3d 121
    , 127 (2d Cir. 2004).
    Furthermore, we have concluded that physical mistreatment—
    the    main       focus    of     the    agency’s     determination—is           not
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    dispositive of whether persecution has occurred.                    See Guan
    Shan Liao v. U.S. Dep’t of Justice, 
    293 F.3d 61
    , 67 (2d
    Cir. 2002).
    However, even if all incidents are considered, Chen was
    detained   only      for    brief     periods,       was   never   physically
    abused, and did not establish that he suffered a serious,
    “non-physical       form[]       of   harm    such    as    ‘the   deliberate
    imposition     of      a    substantial       economic       disadvantage.’”
    Ivanishvili, 433 F.3d at 341 (quoting Guan Shan Liao, 293
    F.3d at 67).        The IJ explicitly considered the more severe
    incidents of mistreatment and omitted discussion only of
    Chen’s   five-hour         detention    and    inability      to   enroll   in
    college.     While the agency’s decision is not without error,
    we are “not required to remand where there is no realistic
    possibility that, absent the errors, the IJ or BIA would
    have reached a different conclusion.”                      Alam v. Gonzales,
    
    438 F.3d 184
    , 187-88 (2d Cir. 2006).
    Chen also argues that he established an independent
    fear of future persecution on the basis of his religious
    practice in the United States.                  In the absence of past
    persecution,      he       was    required     to     show     a   reasonable
    7
    possibility that “authorities . . . are either aware of his
    activities       or      are     likely       to   become      aware     of     his
    activities.”           Hongsheng Leng v. Mukasey, 
    528 F.3d 135
    , 143
    (2d Cir. 2008).              An alien may make this showing either by
    offering evidence that “‘he or she would be singled out
    individually           for     persecution’”       or   that     “proves        the
    existence of ‘a pattern or practice in his or her country .
    . . of persecution of a group of persons similarly situated
    to the applicant.’”              Kyaw Zwar Tun v. INS, 
    445 F.3d 554
    ,
    564 (2d Cir. 2006) (quoting 8 C.F.R. § 208.13(b)(2)(iii)).
    The     IJ     reasonably        concluded      that     Chen      failed    to
    demonstrate        a     pattern    or    practice      of     persecution       of
    Christians    who       attend     unregistered      churches.         Jian     Xing
    Huang v. INS, 
    421 F.3d 125
    , 129 (2d Cir. 2005).                                 Chen
    submitted     no       evidence     of    such     persecution      because      he
    submitted no evidence of country conditions.                        Absent any
    such evidence in the record, the IJ did not err in finding
    that Chen failed to meet his burden of proof.
    For the foregoing reasons, the petition for review is
    DISMISSED at to Chen’s asylum claim and DENIED as to all
    other claims.          As we have completed our review, any stay of
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    removal that the Court previously granted in this petition
    is VACATED, and any pending motion for a stay of removal in
    this petition is DISMISSED as moot.     Any pending request
    for oral argument in this petition is DENIED in accordance
    with Federal Rule of Appellate Procedure 34(a)(2), and
    Second Circuit Local Rule34.1(b).
    FOR THE COURT:
    Catherine O=Hagan Wolfe, Clerk
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