12-1337

Chen v. Holder

BIA

Hom, IJ

A089 253 329

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,

on the 23rd 4 day of October, two thousand thirteen.

5

6 PRESENT:

7 ROBERT D. SACK,

8 PETER W. HALL,

9 SUSAN L. CARNEY,

10 Circuit Judges.

11 ______________________________________

12

13 SHENGSHENG CHEN,

14

15 Petitioner, 

16

17 v. 12-1337

18 NAC 

19 ERIC H. HOLDER, JR., UNITED STATES

20 ATTORNEY GENERAL,

21 Respondent.

22 _______________________________________

23

24 FOR PETITIONER: Peter L. Quan, New York, N.Y.

25

26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

27 Attorney General; Blair T. O’Connor,

28 Assistant Director; Edward C.

29 Durant, Attorney, Office of

30 Immigration Litigation, United

31 States Department of Justice,

32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a

2 decision of the Board of Immigration Appeals (“BIA”), it is

3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for

4 review is DISMISSED in part and DENIED in part.

5 Petitioner Shengsheng Chen, a native and citizen of

6 China, seeks review of a March 8, 2012 order of the BIA

7 affirming the February 3, 2010 decision of an Immigration

8 Judge (“IJ”), which denied Chen’s application for asylum,

9 withholding of removal, and relief under the Convention

10 Against Torture (“CAT”). In re Shengsheng Chen, No. A089

11 253 329 (B.I.A. Mar. 8, 2012), aff’g No. A089 253 329

12 (Immig. Ct. N.Y. City Feb. 3, 2010). We assume the parties’

13 familiarity with the underlying facts and procedural history

14 in this 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). The applicable standards of review are well

19 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

20 Holder, 562 F.3d 510, 513 (2d Cir. 2009). 

21 Initially, Chen contends that the BIA erred in finding

22 that he did not file his asylum application within a

23 reasonable time of the cited change in circumstances,

2
1 arising from his pro-China Democracy Party (“CDP”)

2 activities in the United States. The BIA assumed, however,

3 that Chen filed his application within a reasonable time of

4 the start of his CDP activities, but concluded that his CDP

5 activities did not establish an exception to the one-year

6 filing requirement for asylum applications because they did

7 not place him “at risk of harm” in China. Because he has

8 not raised a justiciable legal question challenging the

9 basis of that determination, we lack jurisdiction to review

10 the agency’s pretermission of Chen’s asylum application as

11 untimely. See 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D); 8

12 C.F.R. § 1208.4(a)(4); Xiao Ji Chen v. U.S. Dep’t of

13 Justice, 471 F.3d 315, 329 (2d Cir. 2006). 

14 Chen also challenges the agency’s denial of withholding

15 of removal, contending it is objectively reasonable that he

16 will be persecuted in China because of his CDP activities in

17 the United States. He concedes that he has no apposite

18 evidence other than his own testimony. Without objective

19 evidence either that he would be singled out individually

20 for persecution, or that there exists a pattern or practice

21 of persecution of CDP members in China for their activities

22 in the United States, the BIA reasonably determined that

3
1 Chen’s testimony was speculative and thus insufficient to

2 meet his burden of proof. Hongsheng Leng v. Mukasey, 528

3 F.3d 135, 142-43 (2d Cir. 2008); Jian Xing Huang v. INS, 421

4 F.3d 125, 128-29 (2d Cir. 2005). Moreover, to the extent

5 Chen contends that it was impossible for him to obtain

6 objective evidence, he misapprehends the effect of the

7 assignment to him of the burden to establish a clear

8 probability that “authorities in [China] are either aware...

9 or likely to become aware of his [CDP] activities.” 

10 Hongsheng Leng, 528 F.3d at 143. Because Chen failed to

11 prove affirmatively a clear probability of future

12 persecution, the agency did not err when it denied

13 withholding of removal. Kyaw Zwar Tun v. INS, 445 F.3d 554,

14 564-65 (2d Cir. 2006). 

15 The agency’s denial of CAT relief is not before us,

16 since Chen did not challenge it in his brief. Yueqing Zhang

17 v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).

18 For the foregoing reasons, the petition for review is

19 DISMISSED in part and DENIED in part. As we have completed

20 our review, the pending motion for a stay of removal is

21 DISMISSED as moot. Any pending request for oral argument is

4
1 DENIED in accordance with Federal Rule of Appellate

2 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

3 FOR THE COURT: 

4 Catherine O’Hagan Wolfe, Clerk

5