12-1337
Chen v. Holder
BIA
Hom, IJ
A089 253 329
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 23rd day of October, two thousand thirteen.
5
6 PRESENT:
7 ROBERT D. SACK,
8 PETER W. HALL,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 ______________________________________
12
13 SHENGSHENG CHEN,
14
15 Petitioner,
16
17 v. 12-1337
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Peter L. Quan, New York, N.Y.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Blair T. O’Connor,
28 Assistant Director; Edward C.
29 Durant, Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
4 review is DISMISSED in part and DENIED in part.
5 Petitioner Shengsheng Chen, a native and citizen of
6 China, seeks review of a March 8, 2012 order of the BIA
7 affirming the February 3, 2010 decision of an Immigration
8 Judge (“IJ”), which denied Chen’s application for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Shengsheng Chen, No. A089
11 253 329 (B.I.A. Mar. 8, 2012), aff’g No. A089 253 329
12 (Immig. Ct. N.Y. City Feb. 3, 2010). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we consider both
16 the IJ’s and the BIA’s opinions “for the sake of
17 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
18 2008). The applicable standards of review are well
19 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
20 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
21 Initially, Chen contends that the BIA erred in finding
22 that he did not file his asylum application within a
23 reasonable time of the cited change in circumstances,
2
1 arising from his pro-China Democracy Party (“CDP”)
2 activities in the United States. The BIA assumed, however,
3 that Chen filed his application within a reasonable time of
4 the start of his CDP activities, but concluded that his CDP
5 activities did not establish an exception to the one-year
6 filing requirement for asylum applications because they did
7 not place him “at risk of harm” in China. Because he has
8 not raised a justiciable legal question challenging the
9 basis of that determination, we lack jurisdiction to review
10 the agency’s pretermission of Chen’s asylum application as
11 untimely. See 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D); 8
12 C.F.R. § 1208.4(a)(4); Xiao Ji Chen v. U.S. Dep’t of
13 Justice, 471 F.3d 315, 329 (2d Cir. 2006).
14 Chen also challenges the agency’s denial of withholding
15 of removal, contending it is objectively reasonable that he
16 will be persecuted in China because of his CDP activities in
17 the United States. He concedes that he has no apposite
18 evidence other than his own testimony. Without objective
19 evidence either that he would be singled out individually
20 for persecution, or that there exists a pattern or practice
21 of persecution of CDP members in China for their activities
22 in the United States, the BIA reasonably determined that
3
1 Chen’s testimony was speculative and thus insufficient to
2 meet his burden of proof. Hongsheng Leng v. Mukasey, 528
3 F.3d 135, 142-43 (2d Cir. 2008); Jian Xing Huang v. INS, 421
4 F.3d 125, 128-29 (2d Cir. 2005). Moreover, to the extent
5 Chen contends that it was impossible for him to obtain
6 objective evidence, he misapprehends the effect of the
7 assignment to him of the burden to establish a clear
8 probability that “authorities in [China] are either aware...
9 or likely to become aware of his [CDP] activities.”
10 Hongsheng Leng, 528 F.3d at 143. Because Chen failed to
11 prove affirmatively a clear probability of future
12 persecution, the agency did not err when it denied
13 withholding of removal. Kyaw Zwar Tun v. INS, 445 F.3d 554,
14 564-65 (2d Cir. 2006).
15 The agency’s denial of CAT relief is not before us,
16 since Chen did not challenge it in his brief. Yueqing Zhang
17 v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).
18 For the foregoing reasons, the petition for review is
19 DISMISSED in part and DENIED in part. As we have completed
20 our review, the pending motion for a stay of removal is
21 DISMISSED as moot. Any pending request for oral argument is
4
1 DENIED in accordance with Federal Rule of Appellate
2 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5