11-1963
Chen v. Holder
BIA
Balasquide, IJ
A097 160 466
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 3rd day of May, two thousand thirteen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 ROSEMARY S. POOLER,
9 ROBERT D. SACK,
10 Circuit Judges.
11 _____________________________________
12
13 ZHONG KENG CHEN,
14 Petitioner,
15
16 v. 11-1963
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Galab B. Dhungana, New York, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Linda S. Wernery, Assistant
28 Director; Susan Bennett Green, Trial
1 Attorney, Office of Immigration
2 Litigation, United States Department
3 of Justice, Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Zhong Keng Chen, a native and citizen of the People’s
10 Republic of China, seeks review of an April 15, 2011,
11 decision of the BIA, affirming the June 4, 2009, decision of
12 Immigration Judge (“IJ”) Javier Balasquide, which denied his
13 application for asylum, withholding of removal, and relief
14 under the Convention Against Torture (“CAT”). In re Zhong
15 Keng Chen, No. A097 160 466 (B.I.A. Apr. 15, 2011), aff’g
16 No. A097 160 466 (Immig. Ct. N.Y. City June 4, 2009). We
17 assume the parties’ familiarity with the underlying facts
18 and procedural history in this case.
19 Under the circumstances of this case, we have reviewed
20 both the IJ’s and BIA’s decision. See Zaman v. Mukasey, 514
21 F.3d 233, 237 (2d Cir. 2008). The applicable standards of
22 review are well-established. See 8 U.S.C. § 1252(b)(4)(B);
23 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
24
2
1 Before this Court, Chen challenges only the agency’s
2 finding that he failed to establish that the 4,500 renminbi
3 (“RMB”) fine levied against him amounted to economic
4 persecution, and its determination that the Department of
5 Homeland Security (“DHS”) did not breach its duty of
6 confidentiality in asking the U.S. Consulate in China to
7 verify the authenticity of two abortion certificates Chen
8 submitted in support of his application for asylum.
9 I. Economic Persecution Claim
10 The agency reasonably found that Chen failed to
11 demonstrate that the 4,500 RMB fine imposed by family
12 planning officials amounted to economic persecution. See In
13 re T-Z-, 24 I. & N. Dec. 163, 173 (BIA 2007) (holding that
14 for economic harm to constitute persecution, “an applicant
15 for asylum must demonstrate a severe economic disadvantage”
16 (internal quotation marks omitted)). First, although Chen
17 testified that he did not have a steady job in China, and
18 that he earned, at most, 6,000 RMB annually, he failed to
19 demonstrate that imposition of the 4,500 RMB fine resulted
20 in a severe economic disadvantage, as he testified that he
21 paid the fine “right away” using funds he borrowed from his
22 relatives. See Guan Shan Liao v. U.S. Dep’t of Justice, 293
3
1 F.3d 61, 67 (2d Cir. 2002) (holding that an asylum applicant
2 must show at least a “deliberate imposition of a substantial
3 economic disadvantage” in order for the harm to constitute
4 economic persecution (internal quotation marks omitted)).
5 Moreover, although Chen testified that his wife did not work
6 and that his son cannot attend college “because of [the
7 family’s] financial or economic situation,” as the IJ found,
8 Chen did not present any evidence that his family’s current
9 financial predicament was a consequence of the imposition of
10 the 4,500 RMB fine, or any subsequent fines imposed by
11 family planning officials. See Guan Shan Liao, 293 F.3d at
12 70 (finding that the agency reasonably concluded that the
13 petitioner failed to demonstrate economic persecution when
14 he did not present any testimony or other evidence of his
15 income in China, his net worth at the time of the fines, or
16 any other facts that would make it possible to evaluate his
17 personal financial circumstances in relation to the fines
18 imposed by the government). Accordingly, the agency
19 reasonably found that the fine did not cause him severe
20 economic harm rising to the level of persecution. Id.
21
4
1 II. Breach of Confidentiality Claim
2 Chen contends that the DHS “recklessly” revealed to the
3 Chinese government that he was seeking asylum in the U.S.
4 when it asked the U.S. consulate in Guangzhou, China to
5 verify the authenticity of the two abortion certificates he
6 submitted in support of his claim, and that as a result, he
7 has a well-founded fear of persecution, as supported by this
8 Court’s decision in Zhen Nan Lin v. U.S. Dep’t of Justice,
9 459 F.3d 255 (2d Cir. 2006). In Zhen Nan Lin, the
10 government violated the asylum confidentiality requirement
11 of 8 C.F.R. § 208.6 by submitting for verification the
12 applicant’s Certification of Release to the Prison Bureau in
13 China. 459 F.3d at 262. The government conceded in that
14 case that it had disclosed an unredacted copy of the
15 document, revealing extensive identifying information about
16 the applicant and about his opposition to the Communist
17 government. Id. at 265. The case was remanded to
18 determine, inter alia, whether the breach of asylum
19 confidentiality exposed the applicant to an additional risk
20 of persecution. Id. at 268.
21 In Chen’s case, the government has not conceded – as it
22 did in Zhen Nan Lin – that it breached its asylum
23 confidentiality procedures. Moreover, contrary to Chen’s
5
1 assertions that the DHS failed to take adequate precautions
2 in conducting its investigation, the record evidence
3 indicates that proper procedures were followed. First, as
4 the IJ noted, the record indicates that the DHS redacted
5 identifying information from the Chinese-language abortion
6 certificates prior to transferring them to the U.S.
7 consulate in China, as well as instructed the consular
8 officer conducting the investigation to comply with the
9 asylum confidentiality guidelines. See Zhen Nan Lin, 459
10 F.3d at 265-66 (“When contacting a foreign government is
11 necessary, government personnel have a number of options
12 that protect an applicant’s confidentiality [such as] . . .
13 redact[ing] information identifying the applicant from a
14 document before submitting it to the foreign government.”).
15 Furthermore, there is nothing in the record to compel the
16 conclusion that the U.S. consulate disclosed Chen’s or his
17 wife’s identity during its investigation. Indeed, the
18 letters that the U.S. consulate received from the hospital
19 charged with authenticating the abortion certificates did
20 not contain any reference to Chen, his wife, or his wife’s
21 abortion. Additionally, as the agency found, the record
22 indicates that the consular officer who conducted the
23 investigations was aware of the confidentiality provisions
6
1 of U.S. asylum law, having signed certifications attesting
2 that she had not disclosed the nature of the investigations
3 to Chinese authorities. Accordingly, the IJ reasonably
4 found that the record evidence did not indicate that the DHS
5 breached its duty of confidentiality in asking the U.S.
6 consulate in China to verify the authenticity of the
7 abortion certificates, and, therefore, Chen failed to
8 demonstrate that he had a well-founded fear of persecution
9 on account of the alleged breach.
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, the pending motion
12 for a stay of removal in this petition is DISMISSED as moot.
13
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
7