20

- 8 74 Chen v. Garland BIA Christensen , IJ A 0 78 720 2 79 

### 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** 1 **for the Second Circuit, held at the Thu rgood Marshall**  2 **United States Courthouse, 40 Foley Square, in the City of** 3 **New York, on th e 29**  **th day of**  **April , two thousand twenty** 

**- two** 

**.** 4 5 **PRESENT:** 6 **GUIDO CALABRESI,** 7 **RAYMOND J. LOHIER, JR.,** 8 **EUNICE C. LEE ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **JUAN CHEN ,**  13 **Petitioner ,**  14 15
**v. 20** 

**- 8**  **74** 16 **NAC** 17 18 **MERRICK B. GARLAND , UNITED**  19 **STATES ATTORNEY GENERAL,** 20 **Respondent**

**.** 21

**_____________________________________** 22 23 **FOR PETITIONER** : Gary J. Yerman , Esq. , N ew York , 24 NY

. 25 26 **FOR RESPONDENT:** Jeffrey Bossert Clark , Acting 27 Assistant Attorney Genera l; Zoe J. 28 Heller , Senior Litigation Counsel, 292 Katherine A. Smith , Trial 1 Attorney, Office of Immigration 2 Litigation, United States 3 Department of Justice, Washington, 4 DC. 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 in part and DISMISSED in part

. 9

Petitioner Juan Chen , a native and citizen of the 10
People’s Republic of Ch ina , seeks review of a March 2 , 2020 , 11

decision of the BIA affirming a March 22 , 2018 , decision of 12
an Immigration Judge (“IJ”) denying her application s for 13
asylum, withholding of removal , protection under the 14
Convention Against Torture (“CAT”) , and cancellation of 15

removal

. In r e Juan Chen , No. A 0 78 720 279 (B.I.A. Mar. 2 , 16

2020 ) , aff’g No. A 0 78 720 279 (Immig. Ct. N.Y. City M ar. 22 , 17

2018 )

. We assume the parties’ familiarity with the underlying 18
facts and procedural history. 19

We have review ed both the IJ’s and the BIA’s opinions 20
“for the sake of completeness.” Wangchuck v. Dep’t of 21

Homeland Sec

. , 448 F.3d 524, 528 (2d Cir. 2006). As discussed 22
below, we deny the petition as to asylum, withholding of 233 removal, and CAT relief because Chen did not establish an 1
objectively reasonable fear of future persecution based on 2
her practice of Christianity in the United States , and we 3

dismiss the petition as to cancellation of removal because 4

Chen has not raised a colorable constitutional claim or 5
question of law. 6

I. Asylum, Withholding of Removal, and CAT 7

Chen asserted a fear o f future persecution in China 8
because she began practicing Christianity in the United 9

States. Absent an allegation of past persecution, she had 10

the burden to establish a well

- founded fear of future 11
persecution. 8 C.F.R. § 1208.13(b)(2). “[A] n applicant can 12
make this showing in one of two ways: first, by offering 13

evidence th at he or she would be singled out individually for 14
persecution; and second, by proving the existence of a pattern 15
or practice in his or her country of nationality

. . . of 16
persecution of a group of persons similarly situated to the 17
applican t.” Hongsheng Leng v. Mukasey , 528 F.3d 135, 142 (2d 18
Cir. 2008) (quotation marks and brackets omitted) ; see also 19
8 C.F.R. § 1208.13(b)(2)(iii)

. Where, as here, the applicant 20

bases a claim on “ activities undertaken after h [er] arrival 214 in the United States, ” sh e m ust establish a “reasonable 1
possibility” that the “ authorities in h [er] country of 2
nationality are (1) aware of h [er] activities or (2) likely 3

to become aware of h [er] activities. ” See Hongsheng Leng , 4

528 F.3d at 138 , 142

. Chen did not allege that authorities 5

in China are aware of her practice and would single her out , 6
and she testified that she would not publicly proselytize

. 7
Accordingly, she had to establish a pattern or practice of 8
persecution of Christians. See 8 C.F.R. 9

§ 1208.13(b)(2 ) (iii ). The agency did not err in concluding 10

that she failed to meet her burden. 11

Chen did not present evidence of friends or family in 12

China who were harmed because of their religion, and the State 13
Department’s International Religious Freedom Report for 2016 14

d oes not reflect harassment of religious adherents in Chen’s 15
home province of Fujian. 1 Jian Liang v. Garland , 10 F.4th 16
106, 117 (2d Cir. 2021) (upholding agency’s conclusion that 17
asylum applicant failed to meet burden of proof where record 18

1 The agency took administrative notice of the 2016 Religious Freedom Report. CAR at 5; 8 C.F.R. §1003.1(d)(3)(iv) (The “Board may take administrative notice of facts that are not reasonably subject to dispute, such as. . . contents of official documents outsi de the record.”).5 showed “treatment of Christians in China varie [d] by 1
locality” and did not reflect persecution of Christians in 2
Fujian Provi nce ). As in Jian Liang , the record here reflects 3
varied treatment of Christians, with t he State Department 4
Report not ing that “in some areas, members of unregistered 5
churches said they had more freedom than in the past to conduct 6
religious services.” U.S . Dep’t of State, Bureau of Democracy, 7
H.R. and Lab., International Religious Freedom Report (2016), 8 https://www.state.gov/reports/2016

- report

- on - international

9
religious

- freedom/china

- includes

- tibet

- hong

- kong

- and

- macau/

. 10

Given th e variation in treatment an d the lack of evidence of 11
a pattern or practice of persecution of Christians in Fujian 12

Province , the agency did not err in concluding that Chen did 13
not meet her burden of demonstrating a well

- founded fear of 14
persecution

. See Jian Xing Huang v. U.S. INS , 421 F.3d 125, 15
129 (2d Cir. 2005) (“In the absence of solid support in the 16
record . . . [an applicant’s] fear is speculative at best.”)

. 17

Her failure to meet her burden for asylum is also dispositive 18
of withholding of removal and CAT relief. Lecaj v. Holde r , 19
616 F.3d 111, 119

– 20 (2d Cir. 2010) (holding that applicant 20

who “ fails to demonstrate the slight, though discernable, 216 chance of persecution required for the grant of asylum,

. . 1

. necessarily fails to demonstrate the clear probability of 2
future persecution required for withholding of removal, and 3
the more likely than not to be tortured standard required for 4

CAT relief ” (quotation marks and citations omitted) )

. 5

II. Cancellation of Remov al 6

Cancellation of removal is a form of discretionary relief 7
available to nonpermanent residents who meet presence and 8
character requirements, do not have disqualifying 9
convictions, and, as relevant here, show that their removal 10
would cause a qualifying re lative “exceptional and extremely 11
unusual hardship.” 8 U.S.C. § 1229b(b)(1). Our jurisdiction 12
to review the denial of cancellation of removal, including 13
the hardship determination, is limited to constitutional 14
claims and questions of law , which include “ the application 15
of a legal standard to undisputed or established facts,” 16

Guerrero

- Lasprilla v. Barr , 140 S. Ct. 1062, 1067 (2020) ; see 17

also 8 U.S.C. § 1252(a)(2)(B), (D); Barco

- Sandoval v. 18

Gonzales , 516 F.3d 35, 39

– 40 (2d Cir. 2008). An error of law 19
may occur where “some facts important to the subtle 20
determination of exceptional and extremely unusual hardship 217 have been totally overlooked and others have been seriously 1

mischaracterized.” Mendez v. Holder , 566 F.3d 316, 323 (2d 2
Cir. 2009) (quotation marks omitted) . But a challenge to the 3
weight of the evidence or balancing of factors does not raise 4
a question of law. See Argueta v. Holder , 617 F.3d 109, 113 5
(2d Cir. 2010). 6

We dismiss the petition as to cancellation of removal 7
because Chen has not identified a question of law for our 8

review. An applicant has the burden to show that qualifying 9
relatives would suffer hardship “substantially different 10
from, or beyond, that which would normally be exp ected from 11
the deportation of an alien with close family members here .” 12

In re Monreal

- Aguinaga , 23 I. & N. Dec. 56, 65 (B.I.A. 2001). 13
The agency considers the ages, health, and circumstances of 14
the qualifying relatives, including how a lower standard of 15
living, diminished educational opportunities, or adverse 16
country conditions in the country of removal might affect the 17

relatives. Id. at 63. The record reflects that the agency 18

considered Chen’s sons’ current good health and her older 19
son’s past medical treatment in China ; the fact that her sons 20
lived in China for years and spoke the langua g e ; the fact 218 that her older son had attended school in China; and Chen’s 1

and her husband’s financial assets. Accordingly, Chen has 2

not shown that the agency “totally o verlooked” or “seriously 3

mischaracterized” evidence relevant to the hardship 4

determination

. See Mendez , 566 F.3d at 323. 5

For the foregoing reasons, the petition for review is 6

DENIED with respect to asylum, withholding of removal, and 7
CAT protection and DISMISSED with respect to cancellation of 8

removal . All pending motions and applications are DENIED and 9
stays VACATED. 10

FOR THE COURT: 11 Catherine O’Hagan Wolfe, 12 Clerk of Court 13 14 15