Yunlin Chen v. Holder

13-2490 Chen v. Holder BIA Zagzoug, IJ A099 927 190 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 22nd day of September, two thousand fourteen. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 BARRINGTON D. PARKER, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges. 11 _____________________________________ 12 13 YUNLIN CHEN, 14 Petitioner, 15 16 v. 13-2490 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Gary J. Yerman, New York, New York. 24 25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney 26 General; Blair T. O’Connor, 27 Assistant Director; John B. Holt, 28 Trial Attorney, Civil Division, 29 Office of Immigration Litigation, 30 United States Department of Justice, 31 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 Yunlin Chen, a native and citizen of China, 6 seeks review of a June 11, 2013 decision of the BIA 7 affirming an December 15, 2011 decision of an Immigration 8 Judge (“IJ”) denying Chen’s application for asylum, 9 withholding of removal and relief under the Convention 10 Against Torture (“CAT”). In re Yunlin Chen, No. A099 927 11 190 (B.I.A. June 11, 2013), aff’g No. A099 927 190 (Immig. 12 Ct. N.Y. City Dec. 15, 2011). 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 have reviewed 16 both 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) (per curiam). The applicable standards of review are 19 well established. See 8 U.S.C. § 1252(b)(4)(B); see also 20 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 21 Chen brought a so-called “other resistance” claim for 22 asylum and withholding of removal. To succeed, he needed to 2 1 demonstrate that: (1) he engaged in “resistance” to China’s 2 family planning policy; and (2) he suffered harm rising to 3 the level of persecution or had a well-founded fear or 4 likelihood of suffering such harm as a direct result of that 5 resistance. Shi Liang Lin v. U.S. Dep’t of Justice, 494 6 F.3d 296, 313 (2d Cir. 2007); see also 8 U.S.C. 7 § 1101(a)(42); 8 C.F.R. § 1208.16(b); Matter of J-S-, 24 I. 8 & N. Dec. 520, 523 (A.G. 2008). 9 In the main, Chen challenges the agency’s finding that 10 he did not suffer past persecution. He contends that the 11 combination of his wife’s abortion and sterilization (which 12 traumatized him), the destruction of their home, and the 13 fines imposed on them together rose to the level of 14 persecution. 15 “[P]ersecution is the infliction of suffering or harm 16 upon those who differ on the basis of a protected statutory 17 ground.” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 18 332, 341 (2d Cir. 2006). “Such a definition is sufficiently 19 general to encompass ‘a variety of forms of adverse 20 treatment, including non-life-threatening violence and 21 physical abuse, or non-physical forms of harm such as the 22 deliberate imposition of a substantial economic 3 1 disadvantage.’” Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d 2 Cir. 2011) (quoting Ivanishvili, 433 F.3d at 341). For 3 economic harm to constitute persecution, the harm must be 4 “severe,” but an applicant “need not demonstrate a total 5 deprivation of livelihood or a total withdrawal of all 6 economic opportunity in order to demonstrate harm amounting 7 to persecution.” Matter of T-Z-, 24 I. & N. Dec. 163, 8 170-73 (BIA 2007); see also Guan Shan Liao v. U.S. Dep’t of 9 Justice, 293 F.3d 61, 70 (2d Cir. 2002) (requiring an 10 applicant to present testimony or evidence of his financial 11 situation in order to show “that he suffered a deliberate 12 imposition of substantial economic disadvantage.” (internal 13 quotation and citation omitted)). 14 The agency reasonably concluded that the cumulative 15 harm Chen suffered did not amount to persecution. As the 16 BIA pointed out, Chen has paid all but $1,000 of the fines; 17 and as the IJ pointed out, Chen is “in a position now” to 18 clear that debt. Chen testified that he has owed the fine 19 for more than ten years; that he repaid much of it with 20 loans from neighbors; that he currently earns between $6,000 21 and $7,000 per year in the United States; and that he 22 incurred a $50,000 debt to emigrate here (of which $20,000 23 remains). Plainly, the fine is a disadvantage (as all fines 4 1 are); but Chen failed to identify any specific, substantial 2 disadvantage that he has suffered as a result. See Matter 3 of T-Z-, 24 I. & N. Dec. at 170-73; see also Guan Shan Liao, 4 293 F.3d at 70. And while his wife’s forced abortion and 5 sterilization was not irrelevant to the analysis, Shi Liang 6 Lin, 494 F.3d at 313, the combination of it and the fines 7 would not compel a finding of persecution, 8 U.S.C. § 8 1252(b)(4)(B). 9 On appeal, the parties spar over the meaning of this 10 Court’s per curiam decision in Jian Qiu Liu v. Holder, which 11 addressed a claim of past persecution based on “other 12 resistance” to the family planning policy. In that case, 13 Jian Qiu Liu testified when he and his wife failed to 14 produce a birth permit, family planning officials 15 demanded that Liu’s wife be taken so that a 16 forced abortion could be performed. As Liu’s 17 wife was being ‘dragged’ away, Liu pleaded for 18 the officials to stop. Liu then tried to 19 physically stop them. One of the officials 20 slapped Liu, but Liu continued to struggle. 21 At this point, several of the officials 22 surrounded Liu and punched him repeatedly in 23 the face, chest, and back. The police were 24 later called—after the family planning 25 officials took Liu’s wife away in order to 26 perform an abortion—and Liu spent two days in 27 custody for violating China’s family planning 28 policy. 29 30 31 5 1 632 F.3d 820, 821 (2d Cir. 2011). The IJ deemed this to be 2 past persecution and granted asylum. The BIA reversed. 3 This Court denied Liu’s petition for review, observing that 4 “prior to his arrest and detention by local police, [Liu] 5 suffered only minor bruising from an altercation with family 6 planning officials, which required no formal medical 7 attention and had no lasting physical effect.” Id. at 822 8 (emphasis in original). 9 Chen reads our decision in Liu to measure past 10 persecution based solely on what transpired before Liu was 11 imprisoned. So, in Chen’s case, the agency should have 12 compared his suffering to the “minor bruising” that resulted 13 from Liu’s single altercation with family planning 14 officials. That analysis would lead to the inexorable 15 conclusion that “the economic, emotional and psychological 16 harm” he suffered was “substantially worse than any minor 17 bruises.” 18 Liu does not call for such mathematical parsing of the 19 timeline. To the contrary, like Chen, Liu argued that the 20 agency failed “to analyze whether the beating occurred in 21 the context of his arrest,” that is, whether the cumulative 22 harm constituted persecution. Liu, 632 F.3d at 822. The 23 Court admonished that “a beating that occurs in the context 6 1 of an arrest or detention may constitute persecution,” and 2 the agency must be “keenly sensitive” to that possibility. 3 Id. (quoting Beskovic, 467 F.3d at 226). Here, the agency 4 correctly distinguished Liu: Chen had no altercation with 5 family planning officials. In fact, he had few interactions 6 with them at all. 7 In her oral decision, the IJ explained that while she 8 found Chen’s testimony to be credible, she found one aspect 9 of it implausible: his prediction that family planning 10 officials will sterilize him if he fails to repay the fine. 11 The IJ reasoned that Chen’s wife has been sterilized 12 already, and so there is no reason for officials to mete out 13 “such a severe penalty as sterilization” on Chen. Chen 14 labels this finding “extremely naive” in light of the 15 “horror stories stemming from the family planning 16 authorities’ draconian regime.” However, the 2007 State 17 Department profile on China, which Chen admitted into 18 evidence, states that Fujianese family planning officials 19 deny that parents can be sterilized if they are unable or 20 refuse to pay birth control fines, and that they have 21 permitted couples to make installment payments. The State 22 Department acknowledges media reports of people being 23 punished for failing to pay fines, but notes that such cases 7 1 have not been independently verified. This constitutes 2 substantial evidence to support the IJ’s finding that Chen 3 failed to satisfy his burden of showing an objectively 4 reasonable fear of future persecution. 5 The BIA’s decision assumed, without finding, that Chen 6 engaged in “resistance” to China’s family planning policy. 7 So we do not reach the issue of whether Chen did, in fact, 8 resist the family planning policy. See Xue Hong Yang v. 9 U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan 10 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). 11 Having reasonably found that Chen failed to establish 12 the objective likelihood of persecution necessary for 13 asylum, the agency did not err in denying withholding of 14 removal and relief under the CAT, because these claims 15 shared the same factual predicate. See Paul v. Gonzales, 16 444 F.3d 148, 156-57 (2d Cir. 2006). 17 For the foregoing reasons, the petition for review is 18 DENIED. As we have completed our review, any stay of 19 removal that the Court previously granted in this petition 20 is VACATED, and any pending motion for a stay of removal in 21 this petition is DISMISSED as moot. Any pending request for 22 oral argument in this petition is DENIED in accordance with 23 Federal Rule of Appellate Procedure 34(a)(2), and Second 8 1 Circuit Local Rule 34.1(b). 2 FOR THE COURT: 3 Catherine O’Hagan Wolfe, Clerk 4 5 6 9