09-2893-ag
Chen v. Holder
BIA
Holmes-Simmons, IJ
A094 802 980
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 21st day of October, two thousand ten.
PRESENT:
GUIDO CALABRESI,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
______________________________________
XIAO CHEN, a.k.a. SHAO QIN CHEN,
Petitioner,
09-2893-ag
v. NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Jan Potemkin, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General, Civil Division; Shelley R.
Goad, Assistant Director; Jennifer
A. Singer, Trial Attorney, Office of
Immigration Litigation, Civil
Division, 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 DENIED.
Petitioner Xiao Chen, a.k.a. Shao Qin Chen, a native
and citizen of China, seeks review of a June 11, 2009 order
of the BIA affirming the October 3, 2007 decision of
Immigration Judge (“IJ”) Theresa Holmes-Simmons denying
Chen’s application for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). In re
Xiao Chen a.k.a. Shao Qin Chen, No. A094 802 980 (B.I.A.
June 11, 2009). We assume the parties’ familiarity with the
underlying facts and procedural history of the case.
Under the circumstances of this case, we review both
the IJ’s and the BIA’s decisions. See Yan Chen v. Gonzales,
417 F.3d 268, 271 (2d Cir. 2005). 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 agency reasonably found that Chen did not establish
past persecution or a well-founded fear of future
persecution in light of his wife’s sterilization. See
2
Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004)
(explaining objective component of well-founded fear of
future persecution); Jian Xing Huang v. INS, 421 F.3d 125,
129 (2d Cir. 2005) (holding that fear is not objectively
reasonable if it lacks “solid support” in record and is
merely “speculative at best”). Chen did not claim that he
was himself beaten, arrested, detained or otherwise
persecuted by officials for a violation of the family
planning policy or for his protestations when his wife was
taken into custody for such a violation. See Shi Liang Lin
v. U.S. Dep’t of Justice, 494 F.3d 296, 309-13 (2d Cir.
2007) (en banc). Nor did he provide an objectively
reasonable basis for believing that officials would seek to
persecute him upon his return to China. Although Chen
claimed that officials had sought his sterilization when it
was thought that his wife could not undergo such a
procedure, the record shows that she was in fact sterilized
after Chen left China. Chen has offered no evidence that
once China sterilizes one spouse, it thereafter also seeks
to sterilize the other. On this record, the agency
reasonably found that Chen had not established past
persecution or a well-founded fear of future persecution.
3
Because Chen failed to show that he had a well-founded
fear of persecution, the BIA did not err in denying relief.
Further, because Chen was unable to meet his burden of proof
for asylum, he was unable to meet the higher standard
required to succeed on a claim for withholding of removal.
See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
Chen does not challenge the agency’s denial of CAT relief.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
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 Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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