09-2959-ag

Chen v. Holder

BIA

Gordon-Uruakpa, IJ

A079 190 078

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 26 day of January, two thousand eleven. th

5

6 PRESENT:

7 REENA RAGGI,

8 GERARD E. LYNCH,

9 DENNY CHIN,

10 Circuit Judges.

11 _____________________________________

12

13 GOUYONG CHEN, a.k.a. GUO YONG CHEN,

14 Petitioner, 

15

16 v. 09-2959-ag

17 NAC

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL

20 Respondent.

21 ______________________________________

22

23 FOR PETITIONER: Oleh R. Tustaniwsky, Hualian Law

24 Offices, New York, New York.

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General, Civil Division; Terri J.

28 Scadron, Assistant Director; Manuel

29 A. Palau, Trial Attorney, Office of

30 Immigration Litigation, United

31 States Department of Justice,

32 Washington, D.C.

33
2

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 Gouyong Chen, a native and citizen of China,

6 seeks review of a June 16, 2009 order of the BIA: (1)

7 reversing the August 22, 2007 decision of Immigration Judge

8 (“IJ”) Vivienne E. Gordon-Uruakpa granting Chen’s

9 application for asylum; and (2) denying Chen’s application

10 for asylum, withholding of removal, and relief under the

11 Convention Against Torture (“CAT”). In re Gouyong Chen, No.

12 A079 190 078 (B.I.A. June 16, 2009), rev’g No. A079 190 078

13 (Immig. Ct. N.Y. City Aug. 22, 2007). We assume the

14 parties’ familiarity with the underlying facts and

15 procedural history in this case.

16 Under the circumstances of this case, we review only

17 the decision of the BIA. See Yan Chen v. Gonzales, 417 F.3d

18 268, 271 (2d Cir. 2005). The applicable standards of review

19 are well-established. See 8 U.S.C. § 1252(b)(4)(B); Jian

20 Hui Shao v. Mukasey, 546 F.3d 138, 157-58 (2d Cir. 2008);

21 Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

22 Chen’s argument that he is eligible for asylum based
3

1 solely on his wife’s involuntary abortion and sterilization

2 is foreclosed by our decision in Shi Liang Lin v. U.S. Dep’t

3 of Justice, 494 F.3d 296, 301 (2d Cir. 2007) (en banc). 

4 Moreover, the BIA did not err in concluding that Chen’s

5 treatment for “other resistance” to his wife’s 1995

6 involuntary abortion did not rise to the level of

7 persecution. See 8 U.S.C. § 1101(a)(42); see also

8 Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 340-41

9 (2d Cir. 2006) (collecting decisions discussing definition

10 of persecution). Because this defect necessarily also

11 defeats Chen’s CAT claim based on the same factual

12 predicate, see Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

13 2006), the BIA did not err in failing separately to evaluate

14 that claim. 

15 Finally, we identify no error in the BIA’s

16 determination that Chen failed to establish a well-founded

17 fear of persecution based on his illegal departure from

18 China. See Qun Yang v. McElroy, 277 F.3d 158, 163 n.5 (2d

19 Cir. 2002) (finding that the possibility that an alien will

20 be prosecuted under a generally applicable statute does not,

21 by itself, demonstrate that the alien has a well-founded

22 fear of persecution on a protected ground). 
4

1 For the foregoing reasons, the petition for review is

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

3 removal that the Court previously granted in this petition

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

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

6 oral argument in this petition is DENIED in accordance with

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

8 Circuit Local Rule 34.1(b).

9 FOR THE COURT: 

10 Catherine O’Hagan Wolfe, Clerk

11

12