09-0228-ag
Chen v. Holder
BIA
Lamb, IJ
A095 710 129
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 13 th day of April, two thousand ten.
PRESENT:
JOSEPH M. McLAUGHLIN,
ROBERT A. KATZMANN,
RICHARD C. WESLEY,
Circuit Judges.
_______________________________________
CHUA HUA CHEN, ALSO KNOWN AS CUI HUA
CHEN, ALSO KNOWN AS KA MAN YIU,
Petitioner,
v. 09-0228-ag
NAC
ERIC H. HOLDER, JR., * UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Norman Kwai Wing Wong, New York, N.Y.
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
FOR RESPONDENT: Tony West, Assistant Attorney
General, Terri J. Scadron, Assistant
Director, Surell Brady, Trial
Attorney, Office of Immigration
Litigation, Civil Division, United
States Department of Justice,
Washington, DC
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 Chua Hua Chen, a native and citizen of China,
seeks review of a May 8, 2008, order of the BIA denying her
motion to remand and affirming the June 26, 2007, decision
of Immigration Judge (“IJ”) Elizabeth A. Lamb denying her
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Chua
Hua Chen, No. A095 710 129 (B.I.A. May 8, 2008), aff’g No.
A095 710 129 (Immig. Ct. N.Y. City June 26, 2007). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we review the
decision of the IJ as supplemented by the BIA. See Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well-established. See
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8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90,
95 (2d Cir. 2008); Salimatou Bah v. Mukasey, 529 F.3d 99,
110 (2d Cir. 2008).
The record supports the agency’s determination that Chen
failed to establish eligibility for asylum or withholding of
removal. Contrary to Chen’s argument that she suffered past
persecution, the agency reasonably determined that the
treatment she received for printing Falun Gong booklets
failed to rise to that level. See Ivanishvili v. U.S. Dep’t
of Justice, 433 F.3d 332, 341 (2d Cir. 2006); Ai Feng Yuan
v. U.S. Dep’t of Justice, 416 F.3d 192, 198 (2d Cir. 2005)
(finding that “persecution is an extreme concept that does
not include every sort of treatment our society regards as
offensive”)(alteration and internal quotation marks
omitted). With respect to her fear of future persecution,
the BIA reasonably found that even assuming government
officials in China sought to arrest her, she failed to
demonstrate that any harm would rise to the level of
persecution, given that she was not a Falun Gong
practitioner and had not been harmed in the past. See Jian
Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (finding
that a fear is not objectively reasonable if it lacks “solid
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support” in the record and is merely “speculative at best”).
Accordingly, the agency did not err in denying Chen’s
application for asylum and withholding of removal.
Chen further challenges the agency’s denial of her
application for CAT relief, arguing that the background
evidence in the record demonstrates that it is more likely
than not that she will be tortured by Chinese government
officials on account of her illegal departure. We find no
merit to that argument. As we have held, an applicant
cannot demonstrate that she is more likely than not to be
tortured “based solely on the fact that she is part of the
large class of persons who have illegally departed China”
and on generalized evidence indicating that torture occurs
in Chinese prisons. Mu Xiang Lin v. U.S. Dep’t of Justice,
432 F.3d 156, 160 (2d Cir. 2005)(emphasis omitted).
Finally, we conclude that the BIA did not abuse its
discretion in denying Chen’s motion to remand. See Li Yong
Cao v. U.S. Dep't of Justice, 421 F.3d 149, 151 (2d Cir.
2005). The BIA reasonably determined that Chen failed to
demonstrate eligibility for relief based on her fear that
she would be sterilized for violating China’s family
planning policy by giving birth to more than one child. See
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Jian Hui Shao v. Mukasey, 546 F.3d 138, 158-73 (2d Cir.
2008) (upholding the BIA’s decisions in Matter of J-H-S-, 24
I & N Dec. 196 (BIA 2007); Matter of J-W-S-, 24 I & N Dec.
185 (BIA 2007); Matter of S-Y-G-, 24 I & N Dec. 247 (BIA
2007)).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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