Zhi Tan Chen v. Holder

09-2314-ag
Chen v. Holder
BIA
Brennan, IJ
A099 532 552
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 20th day of May, two thousand eleven.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 ______________________________________
12
13 ZHI TAN CHEN,
14 Petitioner,
15
16 09-2314-ag
17 v. NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Jim Li, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Ernesto H. Molina, Jr.,
28 Assistant Director; Tracey N.
29 McDonald, Trial Attorney, Office of
30 Immigration Litigation, Civil
31 Division, United States Department
32 of Justice, 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, Zhi Tan Chen, a native and citizen of

6 China, seeks review of a May 4, 2009, decision of the BIA

7 affirming the July 17, 2007, decision of Immigration Judge

8 (“IJ”) Noel Brennan denying his application for asylum,

9 withholding of removal, and relief under the Convention

10 Against Torture (“CAT”). In re Zhi Tan Chen, No. A099 532

11 552 (B.I.A. May 4, 2009), aff’g No. A099 532 552 (Immig.

12 Ct. N.Y. City July 17, 2007). We assume the parties’

13 familiarity with the underlying facts and procedural history

14 of the 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). Because Chen does not meaningfully challenge the

19 agency’s denial of his application for withholding of

20 removal or CAT relief, we consider only the agency’s denial

21 of his asylum claim. See Yueqing Zhang v. Gonzales, 426

22 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005) (concluding that

23 issues not sufficiently argued in the briefs are considered

2
 1 waived and normally will not be addressed on appeal). The

2 applicable standards of review are well-established. See

3 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,

4 562 F.3d 510, 513 (2d Cir. 2009); Li Yong Cao v. Dep't of

5 Justice, 421 F.3d 149, 151 (2d Cir.2005).

6 The agency correctly concluded that Chen was not

7 eligible for asylum based solely on his wife’s forced

8 abortion and sterilization. See Shi Liang Lin v. U.S. Dep’t

9 of Justice, 494 F.3d 296, 309-10 (2d Cir. 2007).

10 Nonetheless, even though he was not per se eligible for

11 relief on that basis, he could have established his

12 eligibility for relief by demonstrating that he engaged in

13 “other resistance” to the family planning policy and that he

14 either suffered past persecution or had a well founded fear

15 of future persecution on account of that resistance.

16 8 U.S.C. § 1101(a)(42); Shi Liang Lin, 494 F.3d at 313.

17 The agency reasonably found, however, that Chen failed

18 to demonstrate past persecution or a well-founded fear of

19 future persecution, as, even taken cumulatively, the harms

20 he suffered did not constitute persecution. While Chen

21 claims that family planning officials pushed him out of

22 their office, causing him to hit his back on a doorknob and

23 resulting in a small bruise, the agency reasonably

3
 1 determined that this physical mistreatment, considered with

2 other claimed harms, did not constitute past persecution, as

3 Chen was not detained at the time and did not establish that

4 he suffered any significant harm as a result. Ivanishvili

5 v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006)

6 (holding that “the difference between harassment and

7 persecution is necessarily one of degree that must be

8 decided on a case-by-case basis”); Jian Qui Liu v. Holder,

9 No. 09-5258-ag, 2011 WL 199123, at *1-2 (2d Cir. Jan. 24,

10 2011) (holding that a minor beating by family planning

11 officials prior to arrest and detention by police, and

12 carried out without any intention to arrest or detain, need

13 not constitute persecution).

14 In addition, the agency reasonably determined that the

15 threats by family planning officials to call the police if

16 Chen did not stop arguing with them or speaking to other

17 villagers about the family planning policy did not

18 constitute persecution, given that Chen did not specify what

19 harm would have resulted if the police were called, and the

20 threats remained unfulfilled even though he remained in

21 China for more than three years after his wife was

22 sterilized. See Guan Shan Liao v. U.S. Dep’t of Justice,

23 293 F.3d 61, 70 (2d Cir. 2002) (determining that an

4
 1 ambiguously worded order to attend a birth control study

2 class did not amount to past persecution).

3 The agency also reasonably determined that Chen failed

4 to establish a well founded fear of future persecution, as

5 he did not present any argument or evidence indicating that

6 he would suffer more severe harm upon return to China than

7 he had suffered in the past. See Ramsameachire v. Ashcroft,

8 357 F.3d 169, 178 (2d Cir. 2004) (requiring an applicant to

9 demonstrate that his subjective fear is objectively

10 reasonable); Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d

11 Cir. 2005) (holding that absent “solid support in the

12 record” for petitioner’s claim that he would be persecuted

13 under the family planning policy, his fear was “speculative

14 at best”).

15 For the foregoing reasons, the petition for review is

16 DENIED. As we have completed our review, any stay of

17 removal that the Court previously granted in this petition

18 is VACATED, and any pending motion for a stay of removal in

19 this petition is DISMISSED as moot. Any pending request for

20 oral argument in this petition is DENIED in accordance with

21 Federal Rule of Appellate Procedure 34(a)(2), and Second

22 Circuit Local Rule 34.1(b).

23 FOR THE COURT:
24 Catherine O’Hagan Wolfe, Clerk
25
26

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