20-874

Chen v. Garland BIA

Christensen, IJ

A078 720 279

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 

3 United States Courthouse, 40 Foley Square, in the City of 

New York, on the 29th 4 day of April, two thousand twenty-two.

5

6 PRESENT:

7 GUIDO CALABRESI,

8 RAYMOND J. LOHIER, JR.,

9 EUNICE C. LEE,

10 Circuit Judges.

11 _____________________________________

12

13 JUAN CHEN,

14 Petitioner,

15

16 v. 20-874

17 NAC

18

19 MERRICK B. GARLAND, UNITED 

20 STATES ATTORNEY GENERAL,

21 Respondent.

22 _____________________________________

23

24 FOR PETITIONER: Gary J. Yerman, Esq., New York, 

25 NY.

26

27 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 

28 Assistant Attorney General; Zoe J. 

29 Heller, Senior Litigation Counsel, 
2

1 Katherine A. Smith, Trial 

2 Attorney, Office of Immigration 

3 Litigation, United States 

4 Department of Justice, Washington, 

5 DC.

6 UPON DUE CONSIDERATION of this petition for review of a 

7 Board of Immigration Appeals (“BIA”) decision, it is hereby 

8 ORDERED, ADJUDGED, AND DECREED that the petition for review 

9 is DENIED in part and DISMISSED in part.

10 Petitioner Juan Chen, a native and citizen of the 

11 People’s Republic of China, seeks review of a March 2, 2020, 

12 decision of the BIA affirming a March 22, 2018, decision of

13 an Immigration Judge (“IJ”) denying her applications for 

14 asylum, withholding of removal, protection under the 

15 Convention Against Torture (“CAT”), and cancellation of 

16 removal. In re Juan Chen, No. A078 720 279 (B.I.A. Mar. 2, 

17 2020), aff’g No. A078 720 279 (Immig. Ct. N.Y. City Mar. 22, 

18 2018). We assume the parties’ familiarity with the underlying 

19 facts and procedural history.

20 We have reviewed both the IJ’s and the BIA’s opinions 

21 “for the sake of completeness.” Wangchuck v. Dep’t of 

22 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). As discussed 

23 below, we deny the petition as to asylum, withholding of 
3

1 removal, and CAT relief because Chen did not establish an 

2 objectively reasonable fear of future persecution based on 

3 her practice of Christianity in the United States, and we 

4 dismiss the petition as to cancellation of removal because 

5 Chen has not raised a colorable constitutional claim or 

6 question of law. 

7 I. Asylum, Withholding of Removal, and CAT

8 Chen asserted a fear of future persecution in China 

9 because she began practicing Christianity in the United 

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

11 the burden to establish a well-founded fear of future 

12 persecution. 8 C.F.R. § 1208.13(b)(2). “[A]n applicant can 

13 make this showing in one of two ways: first, by offering 

14 evidence that he or she would be singled out individually for 

15 persecution; and second, by proving the existence of a pattern 

16 or practice in his or her country of nationality . . . of 

17 persecution of a group of persons similarly situated to the 

18 applicant.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 142 (2d 

19 Cir. 2008) (quotation marks and brackets omitted); see also

20 8 C.F.R. § 1208.13(b)(2)(iii). Where, as here, the applicant 

21 bases a claim on “activities undertaken after h[er] arrival 
4

1 in the United States,” she must establish a “reasonable 

2 possibility” that the “authorities in h[er] country of 

3 nationality are (1) aware of h[er] activities or (2) likely 

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

5 528 F.3d at 138, 142. Chen did not allege that authorities 

6 in China are aware of her practice and would single her out,

7 and she testified that she would not publicly proselytize. 

8 Accordingly, she had to establish a pattern or practice of 

9 persecution of Christians. See 8 C.F.R. 

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

11 that she failed to meet her burden.

12 Chen did not present evidence of friends or family in 

13 China who were harmed because of their religion, and the State 

14 Department’s International Religious Freedom Report for 2016 

15 does not reflect harassment of religious adherents in Chen’s 

16 home province of Fujian.1 Jian Liang v. Garland, 10 F.4th 

17 106, 117 (2d Cir. 2021) (upholding agency’s conclusion that 

18 asylum applicant failed to meet burden of proof where record 

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 outside the record.”).
5

1 showed “treatment of Christians in China varie[d] by 

2 locality” and did not reflect persecution of Christians in 

3 Fujian Province). As in Jian Liang, the record here reflects 

4 varied treatment of Christians, with the State Department 

5 Report noting that “in some areas, members of unregistered 

6 churches said they had more freedom than in the past to conduct 

7 religious services.” U.S. Dep’t of State, Bureau of Democracy, 

8 H.R. and Lab., International Religious Freedom Report (2016), 

9 https://www.state.gov/reports/2016-report-on-international10 religious-freedom/china-includes-tibet-hong-kong-and-macau/. 

11 Given the variation in treatment and the lack of evidence of 

12 a pattern or practice of persecution of Christians in Fujian

13 Province, the agency did not err in concluding that Chen did 

14 not meet her burden of demonstrating a well-founded fear of 

15 persecution. See Jian Xing Huang v. U.S. INS, 421 F.3d 125, 

16 129 (2d Cir. 2005) (“In the absence of solid support in the 

17 record . . . [an applicant’s] fear is speculative at best.”). 

18 Her failure to meet her burden for asylum is also dispositive 

19 of withholding of removal and CAT relief. Lecaj v. Holder, 

20 616 F.3d 111, 119–20 (2d Cir. 2010) (holding that applicant 

21 who “fails to demonstrate the slight, though discernable, 
6

1 chance of persecution required for the grant of asylum, . . 

2 . necessarily fails to demonstrate the clear probability of 

3 future persecution required for withholding of removal, and 

4 the more likely than not to be tortured standard required for 

5 CAT relief” (quotation marks and citations omitted)).

6 II. Cancellation of Removal

7 Cancellation of removal is a form of discretionary relief 

8 available to nonpermanent residents who meet presence and 

9 character requirements, do not have disqualifying 

10 convictions, and, as relevant here, show that their removal 

11 would cause a qualifying relative “exceptional and extremely 

12 unusual hardship.” 8 U.S.C. § 1229b(b)(1). Our jurisdiction 

13 to review the denial of cancellation of removal, including 

14 the hardship determination, is limited to constitutional 

15 claims and questions of law, which include “the application 

16 of a legal standard to undisputed or established facts,” 

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

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

19 Gonzales, 516 F.3d 35, 39–40 (2d Cir. 2008). An error of law 

20 may occur where “some facts important to the subtle 

21 determination of exceptional and extremely unusual hardship 
7

1 have been totally overlooked and others have been seriously 

2 mischaracterized.” Mendez v. Holder, 566 F.3d 316, 323 (2d 

3 Cir. 2009) (quotation marks omitted). But a challenge to the 

4 weight of the evidence or balancing of factors does not raise 

5 a question of law. See Argueta v. Holder, 617 F.3d 109, 113 

6 (2d Cir. 2010). 

7 We dismiss the petition as to cancellation of removal 

8 because Chen has not identified a question of law for our 

9 review. An applicant has the burden to show that qualifying 

10 relatives would suffer hardship “substantially different 

11 from, or beyond, that which would normally be expected from 

12 the deportation of an alien with close family members here.” 

13 In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 65 (B.I.A. 2001). 

14 The agency considers the ages, health, and circumstances of 

15 the qualifying relatives, including how a lower standard of 

16 living, diminished educational opportunities, or adverse 

17 country conditions in the country of removal might affect the 

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

19 considered Chen’s sons’ current good health and her older 

20 son’s past medical treatment in China; the fact that her sons 

21 lived in China for years and spoke the language; the fact 
8

1 that her older son had attended school in China; and Chen’s 

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

3 not shown that the agency “totally overlooked” or “seriously 

4 mischaracterized” evidence relevant to the hardship 

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

6 For the foregoing reasons, the petition for review is 

7 DENIED with respect to asylum, withholding of removal, and 

8 CAT protection and DISMISSED with respect to cancellation of 

9 removal. All pending motions and applications are DENIED and 

10 stays VACATED.

11 FOR THE COURT: 

12 Catherine O’Hagan Wolfe,

13 Clerk of Court

14

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